UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE UNITED STATES OF AMERICA v. Cr. No.

07-189-01/03-GZS DANIEL RILEY, JASON GERHARD and CIRINO GONZALEZ GOVERNMENT’S TRIAL BRIEF REGARDING E-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 Elaine’s 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

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 The defendants also publicly stated their

firearms to the Browns.

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

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, Page 2 of 15

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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, Government’s Trial Exhibits (“Gov’t. 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. Gov’t. Ex. Nos. 2d and 2e. In another e-mail, Riley asked Gonzalez

whether he (Riley) should purchase ammunition for “Ed.” Gov’t. 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. Gov’t. Tr. Ex. No.

using and possessing firearms in connection with a crime of violence. In the e-mails he wrote, Gonzalez used his nickname, “Reno,” to identify himself. In the e-mails he wrote, Riley used the initial of first name or the initials of his first and middle name, “DJ,” to identified himself. Riley also addressed Gonzalez as “Reno.” Page 3 of 15
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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 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. 2g.3 Gov’t. Tr. Ex. No.

In another other e-mail, Riley identified supplies that were

needed at the Browns’ residence. Gov’t. Tr. Ex. 2i. Government Trial Exhibit Nos. 3, 3a and 3b include e-mails that were sent from Gerhard’s 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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No effort was made to arrest the Browns at that time. were written by people other than defendants in the e-mails exchanges are being offered by provide context to the defendant’s statements, of the matters asserted in them. Page 4 of 15

E-mails that that are embedded the government to not for the truth

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indicated in the headers to the e-mails. In the government’s view, the stipulations are all that is needed to satisfy the authenticity requirements of Fed. R. Evid. 901 (requiring documents to be authentic). the standard for authenticity is As the court is aware, United States v.

“slight.”

Holmquist, 36 F.3d 154, 158 (1st Cir. 1994). stipulations create a “reasonable

Put another way, the id., that the

likelihood,”

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,

(1st Cir. 2006 (“if the district court is satisfied that the 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 (1st Cir. 1997). 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 printout 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s correct e-mail address, and that the content of the e-mails demonstrated that the author had detailed knowledge of the defendant’s conduct and the investigation of it. 235 F.3d at 1322. In addition, the author of the e-mails

identified himself using the defendant’s 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, Riley’s 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 emails were exchanged. Riley purchased was In addition, the .50 caliber weapon that 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, Riley’s authorship of e-mails that relate to his purchase of Tannerite, is corroborated by the fact that large quantities of Tannerite were shipped to Riley’s 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. Riley’s 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, Riley’s 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. Riley’s 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, Riley’s 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. Gerhard’s 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 Gerhard’s undeniable participation in the conspiracy, the e-mail’s detailed references to events that occurred on the Browns’ property, references to Gerhard’s

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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Riley introduces himself and provides encouragement to the Browns, Gov’t 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, Gov’t. Tr. Ex. No. 1e; and a video blog and an audio recording in which Gonzalez also threatens to use force to protect the Browns, Gov’t. Tr. Ex. Nos. 1g and 1h. In addition, on June 7, 2007, Riley was interviewed by DUSM James Allandydy.3 During the interview, Riley stated that he is 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.4 Riley also

said that a number of people were prepared to use force to prevent the Browns from being arrested, and that grenades and numerous

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. 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. Page 10 of 15
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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 (1st Cir. 2005); United 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

government’s 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 court’s decision to admit a

coconspirator statement will only be reversed if it is clearly erroneous. United States v. Thompson, 449 F.3d 267, 273 (1st Cir.

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

conspirator's statement alone is not sufficient to meet that standard. 1993). There is no requirement that the person to whom the statement is made is a member of the conspiracy. United States v. Meggers, United States v. Sepulveda, 15 F.3d 1161, 1181 (1st Cir.

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 (1st Cir. 1999); United States v. Munson, 819 F.2d 337, 341 (1st Cir. 1987). For all of those reasons, (a) Riley’s e-mails, his video blog, the statements he made during the radio interview and to DUSM Allandydy; (b) Gonzalez’s 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) Gerhard’s e-mails and Gerhard’s statements to DUSM Nunes are all admissible pursuant to Fed. R. Evid.

801(d)(2)(E). Dated: March 23, 2008 Respectfully submitted, Thomas Colantuono United States Attorney By: /s/ Arnold H. Huftalen Assistant United States Attorney NH Bar No. 1215 53 Pleasant St., 4th Floor Concord, New Hampshire (603) 225-1552 /s/ Robert M. Kinsella Robert M. Kinsella Assistant United States Attorney MA Bar No.273315 53 Pleasant St., 4th Floor Concord, New Hampshire (603) 225-1552

By:

Certificate of Service I hereby certify that, on March 23, 2008, this pleading is being filed electronically and thereby served upon all counsel of record and is also being served via e-mail attachment. /s/ Arnold H. Huftalen Arnold H. Huftalen, AUSA

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