Professional Documents
Culture Documents
v.
Cr. No. 07-189-01/03-GZS
DANIEL RILEY,
JASON GERHARD and
CIRINO GONZALEZ
I. Factual Background
government.
Plainfield, New Hampshire, and a warrant was issued for his arrest.
and Riley helped to assemble explosives, spring guns and pipe bombs
Marshals (DUSMs).
and interfere with the USMS, and to be accessories after the fact;
1
Riley and Gerhard are also charged with carrying, using and
possessing firearms and destructive devices in connection with
crimes of violence. Gonzalez is also charged with carrying,
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II. Admissibility of E-Mails
update a web site that belonged to the Browns. Gov’t. Tr. Ex. No.
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2g. In another e-mail, Gov’t. Tr. Ex. No. 2h, Riley urgently
wrote, “30 to 40 rounds fired behind the house [noise] heard in the
enforcement to take the Browns’ into custody. Gov’t. Tr. Ex. No.
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
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
3
No effort was made to arrest the Browns at that time.
4
E-mails that were written by people other than defendants
that are embedded in the e-mails exchanges are being offered by
the government to provide context to the defendant’s statements,
not for the truth of the matters asserted in them.
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indicated in the headers to the e-mails.
Holmquist, 36 F.3d 154, 158 (1st Cir. 1994). Put another way, the
(1st Cir. 2006 (“if the district court is satisfied that the
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In United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998),
the court noted that “Stavron” identified himself during the chat
using the name “B. Simpson, as well as the defendant’s true street
address and e-mail address. 152 F.3d at 1250. The court also
Cir. 2000), the defendant signed the name of his personal friend,
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
facts from which a jury could conclude that the e-mails were
overwhelming.
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purchased .50 caliber weapons from Stoneagle shortly after the e-
October, and the .50 caliber weapon that Gonzalez purchased was
2007.
and recovered from the Browns’ residence after the e-mails were
Browns’ web site contains details that could only have been known
are needed by the Browns also contains details that could only have
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alleged surge during a radio interview Riley gave at approximately
agents would be hurt and stated his preferred plan to defend the
Gerhard made to a DUSM one month after the e-mail was sent.
defendants who did not write it will probably seek to limit its
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Riley introduces himself and provides encouragement to the Browns,
Gov’t Tr. Ex. No. 1b; excerpts of a radio interview during which
Browns, Gov’t. Tr. Ex. No. 1e; and a video blog and an audio
income taxes. Riley also told Allandydy that he (Riley) and Edward
day which had been brought to the Browns by Gonzalez.4 Riley also
the Browns from being arrested, and that grenades and numerous
3
While walking a dog on the Browns’ property earlier that
day, Riley saw a DUSM who was hidden on the property. Riley was
taken into custody when the DUSM realized that Riley saw him.
While temporarily detained, Riley was interviewed by Allandydy.
4
While speaking with Allandydy, Riley described Gonzalez as
a “gung ho” type, who is trusted by the Browns, and that he
believed Gonzalez would use violence to protect the Browns. Such
statements do not create a Bruton problem because they are
admissible coconspirator statements. See United States v.
Sanchez-Berrios, 424 F.3d 65, 76 (1st Cir. 2005)(“We have
answered this question, holding unequivocally that‘there is no
Bruton problem’ when a ‘statement falls within the coconspirator
exception to the hearsay rule.’” (quoting United States v.
Arruda, 715 F.2d 671, 685 n. 11 (1st Cir.1983))). However, to
avoid any potential Bruton issue, the statement made by Riley
that Gonzalez was “gung ho,” and the statement made by Riley that
he believed Gonzalez would use force, will not be offered during
the government’s direct examination of Allandydy.
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firearms and explosives had been placed at locations around the
would use force to defend himself; and if he was in New York when
Browns’ home and use force, but he would not challenge a road block
use force to protect the Browns, and described the use of force in
Gerhard stated that the police were viewed as treasonous and the
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
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
likely than not that the declarant and the defendant were members
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
more likely than not that the declarant and the defendant were
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Ciampaglia 628 F.2d at 638. And the court’s decision to admit a
erroneous. United States v. Thompson, 449 F.3d 267, 273 (1st Cir.
2004).
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-
1993).
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
See, e.g., United States v. Fields, 871 F.2d 188, 194 (1st Cir.
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scheme, but there is "no talismanic formula for ascertaining when
United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986)).
United States v. Crocker, 788 F.2d 802, 805 (1st Cir. 1986)
105, 117 (1st Cir. 2002), cert. denied, 536 U.S. 932 (2002), as
36, 49 (1st Cir. 1999); United States v. Munson, 819 F.2d 337, 341
For all of those reasons, (a) Riley’s e-mails, his video blog,
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statements he made in the audio statement that was posted to the
801(d)(2)(E).
Respectfully submitted,
Thomas Colantuono
United States Attorney
Certificate of Service
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