UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE United States of America v. Daniel Riley, et al.

UNITED STATES' OBJECTION TO DEFENDANT RILEY'S MOTION FOR DISCOVERY (Docket #237) The United States of America objects to defendant Daniel Riley’s Motion for Discovery (docket #237) as follows. As a preliminary matter, the government has engaged in virtually open file discovery. Pursuant to Federal Rules of Cr. No. 07-189-01-GZS

Criminal Procedure, 12.1, 16 and 26.2, Brady v. Maryland, 373 U.S. 83, 84-87 (1963), and Giglio v. United States, 405 U.S. 150 (1978), and their progeny, the government has already disclosed to the defendant all discoverable material in its possession and it will continue to disclose material as it becomes available. To the extent any Jencks Act material has not already been disclosed it will be disclosed no later than one week before trial. The government has attempted to identify and respond to each request made by the defendant and will address the defendant’s request in the order he has raised them.

Defendant Riley’s Requests Paragraph 3 At paragraph 3 the defendant seeks all notes of agents at his three proffer sessions as well as any recordings made. recordings were made. No

The defendant has already been provided

with copies of the reports prepared of each of the three proffer sessions, which satisfies Rule 16(A)(1)(a). The handwritten

notes of United States Marshals Service (USMS) personnel present have not been disclosed but to avoid unnecessary wrangling the government will produce the handwritten notes. moot. Paragraph 4 At paragraph 4 the defendant seeks information similar to that requested in paragraph 3 but with respect to interviews of others, including co-defendants and unindicted co-conspirators. Co-defendant Robert Wolffe was interviewed twice. were recorded.1 disclosed. No interviews This request is

The reports of those interviews have been

The handwritten notes of USMS personnel present

during the interviews have not been disclosed but to avoid

When co-defendant Gerhard was arrested a video tape was made of him in which he did not speak. That video has already been disclosed. Page 2 of 10

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unnecessary wrangling the government will produce the handwritten notes. The other two co-defendants have not been interviewed. to other people interviewed, all interview reports have been disclosed. This request is moot. As

Paragraphs 5, 6, 7 & 8 At paragraphs 5 through 8 the defendant seeks a photograph that was identified as being of defendant Riley and others in the original Indictment. In subsequent Indictments the

photograph at issue has been appropriately identified as depicting persons other than defendant Riley. moot. Paragraph 9 At paragraph 9 the defendant seeks numerous items, including handwritten notes, training records, disciplinary records, interviews of neighbors of the Browns, in and around June 6 & 7, 2007 relating to certain named USMS personnel “and all other government agents.” He also seeks the type and serial This request is

number of firearms issued to members of the USMS. All reports of interview have been disclosed. As to the

remainder of the request, the government objects because the defendant's request exceeds the requirements of disclosure Page 3 of 10

within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), United States v. Agurs, 427 U.S. 97 (1976), and United States v. Bagley, 473 U.S. 667 (1985). A defendant’s request for discovery must be, among See e.g. U.S. v. Price, 75 F.3d 1440,

other things, specific.

1444-45 (10th Cir. 1996)(discovery denied because motion contained only “bare references” and were “entirely without detail”); U.S. v. Jordan, 316 F.3d 1215, 1250 (11th Cir. 2003)(discovery demand denied because overly vague; “defendant must make a specific request for an item” and explain how it will benefit defense). The defendant does not allege any legal justification, any factual basis, or necessity for his excessive demand for such information. Brady is not a rule of pretrial discovery.

Rather, the purpose of Brady is to prohibit the prosecution from intentionally withholding evidence favorable to the defendant which if suppressed would deprive the defendant of a fair trial. United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir. 1991) (quoting United States v. Bagley, 473 U.S. at 675). Nevertheless, the government has disclosed, and will continue to disclose, any and all exculpatory material in advance of trial, as required. In the event the government is 10

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unsure whether certain material or information constitutes exculpatory evidence and it does not disclose it to the defendant, it will submit such material or information to the Court for in camera review. As to rough notes, training records, and disciplinary records the government objects as defendant's request exceeds the scope of Fed. R. Crim. P. 16(a)(1). Indeed, such a request See

is specifically excluded under Fed. R. Crim. P. 16(a)(2).

Fed. R. Crim. P. 16(a)(2) ("this rule does not authorize the discovery or inspection of reports, memoranda, or other government documents made by . . . government agents in connection with the investigation or prosecution of the case"). See also Campbell v. United States, 296 F.2d 527, 531-32 (1st Cir. 1961) (Court rejected suggestion that F.B.I. had a duty to preserve notes). Additionally, the government objects to the disclosure of any information that identifies the make, model or serial number of any USMS, or other law enforcement agency, firearms, ammunition or non-lethal weapon on the ground that such disclosure would reveal privileged sensitive law enforcement information. Particularly in this case, given the nature of the

charges which include conspiracy to use force and violence Page 5 of 10

against federal law enforcement officers, disclosing weapons and munitions information of federal law enforcement would be dangerous. Paragraph 10 At paragraph 10 the defendant seeks notes, training records, disciplinary records, and other reports “from any of the government agents in and around the Browns[‘] property on July 28 & 29, 2007.” The government objects because the request The defendant has not identified

is vague and overly broad.

legally, or factually, any theory under which he would be entitled to that which he seeks. The government incorporates by

reference its objections in prior and subsequent paragraphs, to the extent they are applicable here. Paragraphs 11, 12, 13 & 14 At paragraphs 11 through 14 the defendant seeks information relating to a helicopter owned by the United States Department of Homeland Security that was flown on July 14, 2007 in the vicinity of the Brown residence. He specifically seeks the

names of individuals who flew and/or were in the helicopter, handwritten notes “by any government agent concerning this helicopter” (Motion @ ¶ 11), as well as the year, make model and any modifications made, and any “weapons on board (physically Page 6 of 10

attached to the helicopter or on a person inside the helicopter) ... “ (Motion @ ¶ 13) as well as information concerning any recording devices and any video, pictures or audio which may have been created. Certain limited video recordings were made from that helicopter and they have recently been produced. These requests are vague, overly broad, and exceed any requirements of disclosure. The defendant has not identified

legally, or factually, any theory under which he would be entitled to that which he seeks. The government incorporates by

reference its objections in prior and subsequent paragraphs, to the extent they are applicable. Additionally, the government objects to the disclosure of any information that identifies the make, model or serial number of any USMS, or other law enforcement agency, firearm, ammunition or non-lethal weapon on the ground that such disclosure would reveal privileged sensitive law enforcement information. Particularly in this case, given the nature of the

charges which include conspiracy to use force and violence against federal law enforcement officers, disclosing weapons and munitions information of federal law enforcement would be dangerous. Page 7 of 10

Paragraph 15 At paragraph 15 the defendant seeks rough notes and police reports from “any law enforcement agencies that worked“ with the federal law enforcement in attempts to apprehend the Browns. These requests are vague, overly broad, and exceed any requirements of disclosure. He has not identified legally, or

factually, any theory under which he would be entitled to that which he seeks. The government incorporates by reference its

objections in prior and subsequent paragraphs, to the extent they are applicable here. Paragraph 16 At paragraph 16 the defendant seeks information concerning payments to local or state law enforcement agencies relating to the apprehension efforts of the Browns. This request is vague, The

overly broad, and exceeds any requirements of disclosure.

defendant has not identified legally, or factually, any theory under which he would be entitled to that which he seeks. The

government incorporates by reference its objections in prior and subsequent paragraphs to the extent they are applicable. Additionally, and without implying that there will be, if any government witness at trial works for a local or state agency that received any reimbursement from the USMS for services Page 8 of 10

rendered, such will be disclosed as potential impeachment material. Paragraph 18 At paragraph 18 the defendant seeks video from a camera which had been located near the intersection of the Brown driveway and Center of Town Road. To the limited extent that The

such video exists, it has already been recently disclosed.

government is in the process of retrieving the hard drive from that camera so that it can be examined to determine if there is any additional video contained therein. disclosed.2 This request is moot. If so, it too will be

Local Rule regarding Discovery Motions United States District Court for the District of New Hampshire, Local Rule 16.3, Motions Seeking Routine Discovery, states “[n]o motion seeking discovery covered by LCrR 16.1 shall be filed unless the opposing party has failed to comply with a written request for the discovery sought by the motion.” Conclusion Whereas the defendant has failed to identify any discovery

Due to technical problems the camera at issue was used more as a transmitter than as a recording device. A live feed was sent from the camera to a remote location where the live feed was at times monitored, but often times not recorded. Page 9 of 10

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material to which he is entitled that has not already been disclosed, and whereas the government has complied, and will continue to comply, with all of its discovery obligations and will produce handwritten notes, and whereas the defendant has failed to comply with Local Rule 16.3, the government respectfully requests that the Court deny the defendant’s Motion for Discovery.

February 12, 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 counsel of 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

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