federal district court, objection to defendant riley's motion to suppress evidence
TRANSCRIPT
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8/14/2019 Federal District Court, Objection to Defendant Riley's Motion to Suppress Evidence
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Cr. No. 07-189-01-GZS
Daniel Riley, et al.
UNITED STATES' OBJECTION TO
DEFENDANT RILEY'S MOTION TO SUPPRESS EVIDENCE
The United States of America, by and through its
undersigned counsel, objects to defendant Daniel Rileys Motion
to Suppress Evidence, docket #102.
As written, the defendants Motion seeks to suppress
statements he made during proffer sessions with the government.
After his arrest on September 12, 2007 the defendant, while
accompanied by counsel, met with the government for three formal
proffer sessions on September 19, September 20, and September
24, 2007. Prior to beginning the first proffer session a
Kastigar proffer agreement letter was presented to Mr. Riley and
his attorney. One of the two Assistant U.S. Attorneys present
reviewed in detail the terms and conditions of the proffer
agreement. After Mr. Riley expressly advised that he understood
and accepted the terms of the agreement he and his attorney
signed the agreement which was also signed by Assistant U.S.
Attorney Robert M. Kinsella. A copy of that two page Kastigar
proffer agreement letter is filed herewith as Exhibit #1.
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As noted on the record at the pretrial conference held
January 8, 2008, consistent with the express terms of the
proffer agreement at paragraph (1), the government does not
intend to offer statements made by the defendant pursuant to the
proffer agreement in its case in chief. The government reserves
the right, consistent with the express terms of the proffer
agreement at paragraph (2), to use any such statements made by
the defendant in rebuttal if the defendant violates the terms of
the proffer agreement and testifies contrary to anything he said
in the proffer sessions.
Therefore, the government submits that the defendants
Motion to Suppress Evidence, as filed, is moot.
However, while at the pretrial hearing held on January 8,
2008, the defendant made statements not previously raised
concerning derivative use of information obtained pursuant to
the above referenced proffer agreement. The government submits
that the Kastigar proffer agreement is a contract and that the
express terms of that contract, at paragraph (3) permit
derivative use. Paragraph (3) states:
(3) The government may make derivative use of and
may pursue investigative leads suggested by any
statements made by Mr. Riley or other information
provided by him, for any purpose. This provision
eliminates the necessity for a Kastigar hearing at
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which the government would otherwise be required to
prove that the evidence it would introduce in any
trial or other proceeding is not tainted by any
statements made by or other information provided by
Mr. Riley during any proffer.
The express provision concerning derivative use clearly allows
the government to make such derivative use.
The Eleventh Circuit Court of Appeals in United States v.
Pielago, 135 F.3d 703, 710-11 (11 Cir. 1998) addressed ath
similar issue and held that the provision of the proffer
agreement in that case, which also reserved derivative use, was
a modification of the provision that provided that statements
made during the proffer would not be used against the defendant
and therefore it was proper for the government to find a witness
and use that witness against the defendant even though the
government would not have found the witness but for the proffer
statements. In that case, the Court noted that [t]he
construction of proffer agreements, like plea agreements, is
governed generally by the principles of contract law, as we have
adapted it for the purposes of criminal law. Id. at 709
(citations omitted). With respect to derivative use, the Court
stated, [t]he government was only forbidden from introducing
[the defendants] statements and the information she provided
into evidence against her, and did not violate the proffer
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agreement by putting Hechavarria [the witness found as a result
of a proffer statement by the defendant] on the stand. Id. at
711.
As the opinion in Pielago makes clear, the provisions of
the proffer agreement there were quite similar to those at issue
here. As the Court in Pielago held, that the proffer agreement
allowed for the derivative use, so too should this Court.
The defendant raised, for the first time at the pretrial
conference another issue. He alleged that he was somehow
induced by his attorney, through misrepresentation that he would
be released on bail if he engaged in the proffer session(s),
into making the proffered statements and but for those
misrepresentations trickery he would not have made any proffer
statements. The defendant went on at the pretrial conference to
say that when one of the government agents (Inspector LaBier)
told him he would not be released on bail he realized that he
had been tricked. Consequently, implies the defendant,
derivative use is forbidden.
The problem for the defendant is that if Inspector LaBier,
or other persons present at the proffer sessions were to
testify, the testimony would be that the statement by Inspector
LaBier took place during the second proffer session. Not only
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did the defendant continue to provide statements and information
after that event during the second proffer session, he came back
four days later and sat through a third proffer session, during
which he provided additional statements and information.
Even after the Court had appointed the defendants current
stand by counsel Mr. Riley came back to the United States
Attorneys Office for two subsequent meetings. His new
attorney, Sven Wiberg, specifically inquired whether the
original proffer agreement was still in effect and was told,
yes. Those two subsequent meetings (after the third proffer
session) were to discuss the possible terms of a plea. Although
they were not proffer sessions and therefore reports of
interview were not generated, the defendant spoke candidly in
both meetings concerning the facts of this case and made certain
admissions.
The fact that he: 1) continued to make statements and
provide information after he supposedly realized that he had
been tricked during the second proffer session; 2) came back for
a third proffer session; and, 3) came back two more times with
new counsel after the third proffer session, belies any credible
contention he may make now make that he did not knowingly and
voluntarily agree to provide information subject to derivative
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use, or that he had somehow been tricked. Mr. Riley had the
advice of two separate experienced criminal defense attorneys.
He was expressly informed concerning the provisions of the
proffer agreement before he spoke. He signed the proffer
agreement, as did his first attorney. He spoke with the
government in three separate proffer sessions and two instances
thereafter. All pursuant to the terms of the proffer agreement,
which expressly reserved the governments right to make
derivative use of the statements and information he provided.
Wherefore, the United States objects to defendant's Motion to
Suppress Evidence and respectfully requests that it be denied.
January 15, 2008 Respectfully submitted,
THOMAS P. COLANTUONO
United States Attorney
By: /s/ Arnold H. Huftalen
Arnold H. Huftalen
Assistant U.S. Attorney
N.H. Bar Assoc. No. 1215
53 Pleasant Street, 4th Floor
Concord, New Hampshire 03301
(603) 225-1552
CERTIFICATION OF SERVICE
I hereby certify that service is being made upon all counselof record, via ecf filing notice, and that service is being made
upon defendant Daniel Riley via US Mail.
/s/ Arnold H. Huftalen
Arnold H. Huftalen
Assistant U.S. Attorney