STATE OF NEW HAMPSHIRE

HILLSBOROUGH, ss:

SUPERIOR COURT NORTH

Case No.: 216-2011-CR-01055

State of New Hampshire

V.

Adam Mueller

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
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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 For
Cause Because He Has Been Incarcerated; Unable to Access Resources to

Understand His Post-Trial Procedural Obligations; and Has Just Recently

Obtained 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 of Felony Wiretappmg because Adam was a Party to the Alleged Intercepted
Communications. 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 as otherwise 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 the

1 delay.State V. Houle, 120 N.H. 160 (1980), declining to extend the time for filing after a more than 8-month c.f
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prior consent of one of the parties to the communication-----" RSA 570-A:2,1a (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 Wiretapping Offense; 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 570A: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 courts
have 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 nontelecommunication means.

F.

Adam Had A Constitutional Right to Record Any Telephone Conversations 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 Legal

Materials

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 and
reverse 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
kr #19881

n
Law Offiqeof BrandonjpU^s, PLLC

Phone: (603) 369-6465 Fax: (603) 369-6466

CERTIFICATE OF SERVICE

22 Bridge StreetTSuiteS

^-'

Email: brandon@bdrosslaw.com

Appearance by USPS first-class mail to the individual listed below:

Michael Valentine, Esq. Hillsborough County Attorney's Ofljee" 300 Chestnut Street ("'

I, Brandon D. Ross, certify that on August 23, 2012,1 mailed a copy of this

Manchester, NH 03101 ^

t Branao
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