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UNITED STATES DISTRICT COURTDISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

v.Cr. No. 07-189-01/03-GZS

DANIEL RILEY,JASON GERHARD andCIRINO GONZALEZ

GOVERNMENTS TRIAL BRIEF REGARDINGE-MAILS AND COCONSPIRATOR STATEMENTS

I. Factual Background

In January 2007, a jury returned verdicts finding Edward Brown

(Edward) and his wife, Elaine Brown (Elaine), guilty of a

number of tax evasion related offenses. The Browns defended

themselves during the trial by asserting that there is no law that

required them to pay personal income taxes to the federal

government.

While the trial was in progress, Edward did not return to

court and secluded himself in the home he and Elaine owned in

Plainfield, New Hampshire, and a warrant was issued for his arrest.

Elaine attended each day of the trial. After the jury

returned its verdicts, a warrant was issued for Elaines arrest

because she violated conditions of her bail by returning to her

home in Plainfield. In April 2007, both Edward and Elaine were

sentenced, in absentia, to 63 months in prison.

The Browns were arrested in October 2007. While they were

fugitives, they remained within the boundaries of the property on

which their home is located. They also made a number of public

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Riley and Gerhard are also charged with carrying, using and1

possessing firearms and destructive devices in connection withcrimes of violence. Gonzalez is also charged with carrying,

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statements regarding their intention to forcibly resist any effort

to arrest them. And they allowed a number of people who believe

that the payment of personal income taxes is voluntary - including,

Daniel Riley, Jason Gerhard and Cirino Gonzalez - to enter and

remain in their home for varying periods of time.

From approximately January 2007 to September 2007, the

defendants performed a number of acts to prevent the Browns from

being arrested. Most significantly, they delivered a number of

firearms to the Browns. The defendants also publicly stated their

intention to use force to protect the Browns, and asked other

people to do the same. The government also submits that Gerhard

and Riley helped to assemble explosives, spring guns and pipe bombs

on the Browns property.

While performing those activities the defendants communicated

by e-mail, published audio and video blogs on the internet, gave

radio interviews and directly threatened Deputy United States

Marshals (DUSMs).

As a result, the defendants are now charged with conspiracy to

prevent the USMS from discharging their official duties; a separate

conspiracy to forcibly, assault, resist, oppose, impede, intimidate

and interfere with the USMS, and to be accessories after the fact;

and other criminal offenses.1

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using and possessing firearms in connection with a crime of

violence.

In the e-mails he wrote, Gonzalez used his nickname,2

Reno, to identify himself. In the e-mails he wrote, Riley usedthe initial of first name or the initials of his first and middlename, DJ, to identified himself. Riley also addressed Gonzalezas Reno.

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II.Admissibility of E-Mails

During the trial of this case, the government will seek to

introduce a number of e-mails that were sent from and received at

e-mail addresses that were utilized by the defendants during the

time period of the conspiracies. The e-mails contain the

defendants personal e-mail addresses, in many cases their first

names or nicknames and other authenticating information.2

The e-mails are also relevant to prove how the conspiracies

were operated. For example, Governments Trial Exhibits (Govt.

Tr. Ex.) Nos. 2 - 2c, contains a series of e-mails that Riley

exchanged with Gonzalez and Richard Tatem, who is the owner of a

firearms dealership, Stoneagle.

In other e-mails, Riley told Gonzalez that he (Riley) was

about to purchase a binary explosive compound, Tannerite. Govt.

Ex. Nos. 2d and 2e. In another e-mail, Riley asked Gonzalez

whether he (Riley) should purchase ammunition for Ed. Govt. Tr.

Ex. 2f. In another set of e-mails, Riley tried to persuade

Gonzalez to return to the Browns residence, and asked him to

update a web site that belonged to the Browns. Govt. Tr. Ex. No.

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No effort was made to arrest the Browns at that time.3

E-mails that were written by people other than defendants4

that are embedded in the e-mails exchanges are being offered bythe government to provide context to the defendants statements,not for the truth of the matters asserted in them.

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2g. In another e-mail, Govt. Tr. Ex. No. 2h, Riley urgently

wrote, 30 to 40 rounds fired behind the house [noise] heard in the

woods every one is at battle stations this is not a drill [I]

repeat this is not a drill, during an alleged effort by law

enforcement to take the Browns into custody. Govt. Tr. Ex. No.

2g. In another other e-mail, Riley identified supplies that were3

needed at the Browns residence. Govt. Tr. Ex. 2i.

Government Trial Exhibit Nos. 3, 3a and 3b include e-mails

that were sent from Gerhards personal e-mail address. In them,

Gerhard explained his reasons for supporting the Browns, predicted

that law enforcement agents would be hurt if they tried to enter

the Browns home, and stated his preferred plan to defend the

Browns was to lie in wait and then come with [a] surprise at the

right time.4

Counsel for the government and the defendants agree: (a) that

copies of the e-mails were produced by the e-mail service

providers, Yahoo.com and Hotmail.com, that managed personal e-mail

accounts for the defendants; (b) the contents of the e-mails have

not been altered; and (c) the e-mails were sent from and received

at personal e-mail addresses that were used by the defendants, as

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indicated in the headers to the e-mails.

In the governments view, the stipulations are all that is

needed to satisfy the authenticity requirements of Fed. R. Evid.

901 (requiring documents to be authentic). As the court is aware,

the standard for authenticity is slight. United States v.

Holmquist, 36 F.3d 154, 158 (1 Cir. 1994). Put another way, thest

stipulations create a reasonable likelihood, id., that the

defendant who is identified as the sender of an e-mail made the

statements that are contained in it. Of course, once an e-mail is

admitted into evidence, all defendants are free to argue that it is

not a statement of the defendant who is identified as the sender,

which is an argument that addresses the weight of the evidence not

its admissibility. United States v. Perez-Gonzalez, 445 F.3d 39,

(1 Cir. 2006 (if the district court is satisfied that thest

evidence is sufficient to allow a reasonable person to believe the

evidence is what it purports to be, Rule 901(a) is satisfied and

the jury may decide the weight of the evidence.)(quoting United

States v. Alicea-Cardoza, 132 F.3d 1, 4 (1 Cir. 1997).st

If the court determines that the e-mails are not sufficiently

authenticated by the stipulations, the e-mails may still be

authenticated pursuant to Fed. R. Evid. 901(b)(4), which provides

that a document may be authenticated by [a]ppearance, contents,

substance, internal patterns, or other distinctive characteristics,

taken in conjunction with circumstances.

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In United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998),

the defendant was found guilty of receiving child pornography.

During the trial, the government introduced into evidence a print-

out of an internet chat between a person using the nickname

Stavron and an undercover law enforcement agent. On appeal, the

defendant, William Simpson, argued that the print-out should have

been excluded because there was insufficient evidence to prove that

it contained admissions by him. Relying on Fed. R. Evid.

901(b)(4), the appellate court disagreed. Explaining its decision,

the court noted that Stavron identified himself during the chat

using the name B. Simpson, as well as the defendants true street

address and e-mail address. 152 F.3d at 1250. The court also

noted that a written document which contained information that was

given to Stravron by the undercover agent during the chat was

recovered during a search of the defendants residence. Id.

Similarly, in United States v. Siddiqui, 235 F.3d 1318 (8th

Cir. 2000), the defendant signed the name of his personal friend,

Dr. Hamuri Yamada, to a form that nominated the defendant for a

$500,000 research grant. The defendant also signed the name of

another friend, Dr. von Gunten, to a form that provided a reference

for the defendant.

While being interviewed by investigators who suspected the

forgeries, the defendant falsely claimed that Yamada and von Gunten

had given him permission to sign their names to the forms. After

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the interview, the defendant sent separate e-mails to Yamada and

von Gunten, requesting them to lie to the investigator. The e-

mails were introduced during the defendants criminal trial and

used to convict him.

On appeal, the defendant claimed the e-mails should have been

excluded because they did not meet the authenticity requirements of

Fed. R. Evid. 901. The court disagreed, and identified several

facts from which a jury could conclude that the e-mails were

written by the defendant, including the fact that the e-mails

contained the defendants correct e-mail address, and that the

content of the e-mails demonstrated that the author had detailed

knowledge of the defendants conduct and the investigation of it.

235 F.3d at 1322. In addition, the author of the e-mails

identified himself using the defendants a nickname, Mo, and the

defendant made separate telephone calls to Yamada and von Gunten,

asking them to lie to the investigator. 235 F.3d at 1323.

In assessing whether the e-mails the government will seek to

introduce contain statements of the defendants, it is important to

keep in mind that the evidence that identifies each defendant as a

member of the conspiracies that are charged in this case is

overwhelming.

With that thought in mind, Rileys and Gonzalez authorship of

the e-mails which relate to their purchase of .50 caliber weapons

from Stoneagle is corroborated by the fact that Riley and Gonzalez

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purchased .50 caliber weapons from Stoneagle shortly after the e-

mails were exchanged. In addition, the .50 caliber weapon that

Riley purchased was recovered from the Browns residence in

October, and the .50 caliber weapon that Gonzalez purchased was

recovered from his residence when he was arrested in September

2007.

Similarly, Rileys authorship of e-mails that relate to his

purchase of Tannerite, is corroborated by the fact that large

quantities of Tannerite were shipped to Rileys home in New York

and recovered from the Browns residence after the e-mails were

written, as were boxes in which Tannerite was shipped to Riley.

Rileys authorship of the e-mail that asks if Ed wants more

rounds, will be corroborated by other evidence that will prove

that Riley was an important source of weaponry to the Browns.

Similarly, Rileys authorship of the e-mail in which Gonzalez is

asked to return to the Browns residence and to perform work on the

Browns web site contains details that could only have been known

by and shared with trusted members of the conspiracies.

Rileys authorship of the e-mail that identifies supplies that

are needed by the Browns also contains details that could only have

been known by an active participant in the conspiracies. In

addition, Rileys authorship of the e-mail that urgently reports an

alleged law enforcement surge onto the Browns property, will be

corroborated by similar urgent statements Riley made about the

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alleged surge during a radio interview Riley gave at approximately

the same time the e-mail was sent.

Gerhards authorship of the e-mails in which he explained his

reasons for supporting the Browns, predicted that law enforcement

agents would be hurt and stated his preferred plan to defend the

Browns, is corroborated by Gerhards undeniable participation in

the conspiracy, the e-mails detailed references to events that

occurred on the Browns property, references to Gerhards

affiliation with a college newspaper, and direct threats that

Gerhard made to a DUSM one month after the e-mail was sent.

The stipulations and the overwhelming amount of evidence

related to the defendants identity proves, beyond any doubt, that

the defendants authored the e-mails for which each of them is

identified as the sender. Accordingly, the e-mails should not be

excluded for lack of authenticity.

III. Coconspirator Statements

Once the court determines that an e-mail is authentic, the

defendants who did not write it will probably seek to limit its

evidentiary value by requesting the court to instruct the jury that

the e-mail cannot be considered as evidence against them. Those

request must be denied because the e-mails are statements made

during the course of and in furtherance of the charged

conspiracies. Fed. R. Evid. 802(D)(2)(E).

The government will also seek introduce a video blog in which

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While walking a dog on the Browns property earlier that3

day, Riley saw a DUSM who was hidden on the property. Riley wastaken into custody when the DUSM realized that Riley saw him.While temporarily detained, Riley was interviewed by Allandydy.

While speaking with Allandydy, Riley described Gonzalez as4

a gung ho type, who is trusted by the Browns, and that hebelieved Gonzalez would use violence to protect the Browns. Suchstatements do not create a Bruton problem because they areadmissible coconspirator statements. See United States v.Sanchez-Berrios, 424 F.3d 65, 76 (1 Cir. 2005)(We havest

answered this question, holding unequivocally thatthere is no

Bruton problem when a statement falls within the coconspiratorexception to the hearsay rule. (quoting United States v.Arruda, 715 F.2d 671, 685 n. 11 (1st Cir.1983))). However, toavoid any potential Bruton issue, the statement made by Rileythat Gonzalez was gung ho, and the statement made by Riley thathe believed Gonzalez would use force, will not be offered duringthe governments direct examination of Allandydy.

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Riley introduces himself and provides encouragement to the Browns,

Govt Tr. Ex. No. 1b; excerpts of a radio interview during which

Riley states that he is prepared to use lethal force to protect the

Browns, Govt. Tr. Ex. No. 1e; and a video blog and an audio

recording in which Gonzalez also threatens to use force to protect

the Browns, Govt. Tr. Ex. Nos. 1g and 1h.

In addition, on June 7, 2007, Riley was interviewed by DUSM

James Allandydy. During the interview, Riley stated that he is3

believes that there is no law that requires individuals to pay

income taxes. Riley also told Allandydy that he (Riley) and Edward

fired a .50 caliber firearm on the Browns property the previous

day which had been brought to the Browns by Gonzalez. Riley also4

said that a number of people were prepared to use force to prevent

the Browns from being arrested, and that grenades and numerous

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firearms and explosives had been placed at locations around the

Browns home. Riley also warned that if an effort was made to

arrest the Browns while he (Riley) was in the Browns home, he

would use force to defend himself; and if he was in New York when

an effort was made to arrest the Browns, he would return to the

Browns home and use force, but he would not challenge a road block

or otherwise initiate the use of force.

On July 19, 2007, Gerhard was involved in an automobile

accident in Lebanon, New Hampshire. The car Gerhard was driving

was confiscated by the USMS because it belonged to the Browns. The

next day, Gerhard went to the Lebanon Police Department to complain

about the seizure of the automobile. While at the police station,

Gerhard spoke with a number of DUSM, including Jamie Berry. During

that conversation, Gerhard identified himself as a reporter for a

college newspaper, who was committed to the Browns cause and

determined to reveal the truth. Gerhard also said that he would

use force to protect the Browns, and described the use of force in

that situation as self defense. When asked about the Browns

threats to kill law enforcement officers and their families,

Gerhard stated that the police were viewed as treasonous and the

penalty for treason is death.

A statement of coconspirator may be admitted if: (1) there is

independent evidence establishing the existence of the conspiracy

and connecting the declarant and the defendant to it; (2) the

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statement was made in furtherance of the conspiracy; and (3) the

statement was made during the course of the conspiracy. United

States v. Sanchez-Berrios, 424 F.3d 65, 74 (1 Cir. 2005); Unitedst

States v. Ciampaglia, 628 F.2d 632, 637 (1st Cir.), cert. denied,

449 U.S. 956 (1980); United States v. Petrozziello, 548 F.2d 20, 23

(1st Cir. 1977).

The court is permitted to conditionally admit a contested

statement pursuant to Rule 802(d)(2)(E), subject to the

governments production of evidence to prove that it was more

likely than not that the declarant and the defendant were members

of a conspiracy and that the statement was made in furtherance of

that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175

(1987) (To admit coconspirator statements under Rule 801(d)(2)(E),

"[t]here must be evidence that there was a conspiracy involving the

declarant and the non-offering party"); United States v. Cresta,

825 F.2d 538, 551 (1st Cir. 1987); United States v. Ciampaglia, 628

F.2d 632, 638 (1st Cir.), cert. denied, 449 U.S. 956 (1980); United

States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977) ("if it is

more likely than not that the declarant and the defendant were

members of a conspiracy when the hearsay statement was made, and

that the statement was in furtherance of the conspiracy, the

hearsay is admissible"). In Ciampaglia, the First Circuit

indicated that the trial court should make an express Petrozziello

determination after all of the evidence has been presented.

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Ciampaglia 628 F.2d at 638. And the courts decision to admit a

coconspirator statement will only be reversed if it is clearly

erroneous. United States v. Thompson, 449 F.3d 267, 273 (1 Cir.st

2006); United States v. Castellini, 392 F.3d 35, 50 (1st Cir.

2004).

In making this determination, the court may consider the

statements themselves as well as other evidence. Bourjaily v.

United States, 483 U.S. 171, 175 (1987); United States v. Gomez-

Pabon, 911 F.2d 847, 856 n. 3 (1st Cir. 1990). However, a co-

conspirator's statement alone is not sufficient to meet that

standard. United States v. Sepulveda, 15 F.3d 1161, 1181 (1 Cir.st

1993).

There is no requirement that the person to whom the statement

is made is a member of the conspiracy. United States v. Meggers,

912 F.2d 246 (8th Cir. 1990); and United States v. Lieberman, 637

F.2d 95, 103 (2d Cir. 1980). In addition, statements that explain

events of importance to the conspiracy in order to facilitate its

operation are also admissible. See, e.g., United States v. Fields,

871 F.2d 188, 194 (1st Cir. 1989).

The principal question in determining whether a statement was

made in furtherance of a conspiracy is whether the statement

promoted, or was intended to promote, the goals of the conspiracy.

See, e.g., United States v. Fields, 871 F.2d 188, 194 (1st Cir.

1989) ("[t]he declarations must have advanced the objectives of the

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scheme, but there is "no talismanic formula for ascertaining when

a statements is in furtherance of the conspiracy") (quoting

United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986)).

Statements that provide assurance, serve to maintain trust and

cohesiveness and/or inform conspirators about matters related to

the conspiracy promote the objectives of the conspiracy. United

States v. Gomez, 810 F.2d 947, 953 (10th Cir. 1987).

A statement does not have to actually further a conspiracy in

order to satisfy the "in furtherance" requirement. See, e.g.,

United States v. Crocker, 788 F.2d 802, 805 (1st Cir. 1986)

(approving the admission of statements that revealed an intention

to promote the objectives of a conspiracy). In fact, to be

admissible under this rule, a statement "need not be necessary or

even important to the conspiracy, or even be made to a

co-conspirator, see United States v. Martinez-Medina, 279 F.3d

105, 117 (1st Cir. 2002), cert. denied, 536 U.S. 932 (2002), as

long as it advances the goals of the conspiracy in some way. Id.

A statement that identifies a conspirator may also be in

furtherance of the conspiracy. United States v. LiCausi, 167 F.3d

36, 49 (1 Cir. 1999); United States v. Munson, 819 F.2d 337, 341st

(1st Cir. 1987).

For all of those reasons, (a) Rileys e-mails, his video blog,

the statements he made during the radio interview and to DUSM

Allandydy; (b) Gonzalezs e-mails, his video blog and the

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statements he made in the audio statement that was posted to the

internet; and (c) Gerhards e-mails and Gerhards statements to

DUSM Nunes are all admissible pursuant to Fed. R. Evid.

801(d)(2)(E).

Dated: March 23, 2008

Respectfully submitted,

Thomas ColantuonoUnited States Attorney

By: /s/ Arnold H. HuftalenAssistant United States AttorneyNH Bar No. 121553 Pleasant St., 4 Floorth

Concord, New Hampshire(603) 225-1552

By: /s/ Robert M. KinsellaRobert M. KinsellaAssistant United States AttorneyMA Bar No.27331553 Pleasant St., 4 Floorth

Concord, New Hampshire(603) 225-1552

Certificate of Service

I hereby certify that, on March 23, 2008, this pleading isbeing filed electronically and thereby served upon all counsel ofrecord and is also being served via e-mail attachment.

/s/ Arnold H. HuftalenArnold H. Huftalen, AUSA