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

07-189-01-GZS

DEFENDANT RILEY’S MEMORANDUM REGARDING WITNESS NOW COMES the accused, Daniel Riley, by and through counsel, and, pursuant to this Court’s request, presents the following in support of his attempt to call a witness who has inappropriately asserted a privilege under the Fifth Amendment: QUESTION PRESENTED The Court conducted preliminary inquiry regarding the calling of certain defense witnesses, out of the presence of the jury, yesterday, April 1, 2008. The focus of the inquiry was whether any of these proposed witnesses might assert their Fifth Amendment privilege. (Mr. Riley notes that more than one of the Government’s civilian witnesses had similar potential selfincrimination issues, known prior to their testimony, but no such inquiry was conducted of them).

Mr. Riley intends to call Joshua McClellan to testify. This witness is absolutely necessary and essential to Mr. Riley’s defense. Under the circumstances, preventing Mr. Riley from calling this witness will completely deprive him of proper impeachment, confrontation, and cross-examination of a dishonest government witness. Such action will consequently violate his rights to due process, fair trial by an impartial jury, and confrontation, which rights are guaranteed him by the Fifth and Sixth Amendments.

Prior being transported to court, this witness had indicated that he did not wish to become involved, but there was no obvious Fifth Amendment problem, since the witness had no

involvement in any of the crimes alleged in the instant case, and his anticipated testimony had no self-incrimination component. Out of an abundance of caution, the undersigned informed the Court through the clerks of the situation and Mr. McClellan was thus involved in the Court’s inquiry yesterday. The witness did not indicate any Fifth Amendment exposure related to his direct testimony. To the contrary, the court appointed counsel for the witness clearly stated that his client would not be exposed to self-incrimination by his answers to Mr. Riley’s questions. Moreover, his counsel indicated that he was not aware of any impeachment by the Government that might expose his client, with the single, speculative exception that the Government might inquire into the charges pending against this incarcerated individual. It was also noted that there was no indication that such impeachment would be allowed, especially in light of the fact that these were pending charges, not convictions. Based on these speculative (perhaps even frivolous) assertions, the Court, at least for the moment, indicated that the witness would be allowed to assert and relieved from the obligation to testify.

By way of offer of proof, Mr. Riley submits that this witness is absolutely essential to his defense, since, if called and allowed to testify, the witness will completely and effectively contradict and impeach the testimony of the Government’s star informer, Anthony Dorothy. On information and belief, and according to the counsel appointed for the witness yesterday, the witness will testify that he shared a cell with the accused at the Strafford County House of Corrections and later occupied a cell directly beneath the cell occupied by the accused in the maximum security area at the jail. This cell was connected with Mr. Riley’s cell by the ventilation system, which was also shared by the cell in which Mr. Dorothy was situated while his cell was next door to Mr. Riley’s. Consequently, the witness was able to hear any conversation passing between four cell thus connected, including those housing the accused and Mr. Dorothy. Dorothy has testified extensively about at least 12 conversations he purportedly had with Mr. Riley through the vents connecting their cells. He has stated, correctly, that the prisoners in this section of the jail were confined to their cells for 23 hours each day. He has also claimed that Mr. Riley admitted to the crimes charged in this case, supposedly giving great corroborating details. Mr. Riley expects that Mr. McClellan will fully contradict these assertions

by stating that no such conversations took place and that Mr. Dorothy repeatedly engaged Mr. Riley in conversation, but without Mr. Riley providing the inculpatory statements attributed to him by Mr. Dorothy. This expectation was confirmed to the undersigned yesterday, by the counsel appointed for the witness.

Mr. Riley submits that it is not necessary to refer to case law to decide this issue, since the rules regarding the questionable impeachment about which counsel for the witness speculated yesterday (in the absence of any suggestion by the Government that it intended to engage in such impeachment) are clear. Rule 404(b) of the Federal Rules of Evidence reads: Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes: Other Crimes, Wrongs, Or Acts Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. (Emphasis added).

Rule 608 of the Federal Rules of Evidence states, in pertinent part: Evidence Evidence of Character and Conduct of Witness ((b) Specific instances of conduct.—Specific instances of the conductof a witness, for the purpose of attacking or supporting thewitness’ character for truthfulness, other than conviction of crimeas provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. (Emphasis added).

Rule 609:

Impeachment by Evidence of Conviction of Crime (a) General rule.—For the purpose of attacking the character for truthfulness of a witness,(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess11 FEDERAL RULES OF EVIDENCE Rule 610 of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. The rules seem quite clear. The Government has not even indicated that it would seek to impeach in the manner about which the witness’ lawyer speculates. Even if it did intend such impeachment, it could not be allowed under the rules. Even if suggested, the Court has the discretion under the rules to exclude the testimony.

If the rules do not, on their face, resolve this issue, Mr. Riley refers the Court to U.S. v. Allen, 491 F.3d 178, 191 (4th Cir. 2007), wherein the court stated: Because a criminal defendant has a right under the Sixth Amendment to compel testimony, if a defense witness refuses to testify on the basis of the Fifth Amendment, "the trial judge must make a proper and particularized inquiry into the legitimacy and scope of the witness's assertion of the privilege." Gaskins v. McKellar, 916 F.2d 941, 950 (4th Cir.1990). "A witness may be totally excused only if the court finds that he could legitimately refuse to answer any and all relevant questions." Id. (Emphasis added).

Since the witness has clearly indicated, through counsel, that he could answer all of Mr. Riley’s questions without claiming the privilege, the Court must allow him to testify, especially in light of the accused’s rights, which outweigh Government’s speculative need for any impeachment on bad acts which are not prior convictions.

Respectfully submitted, /s/ Sven D. Wiberg NH Bar No. 8238 Wiberg Law Office, PLLC 2456 Lafayette Road, Suite 7 Portsmouth, NH 03801 (603) 686-5454 CERTIFICATION I hereby certify that a copy of this pleading will be served upon the Government and counsel for the other parties by ECF filing on this 2ndt day of April, 2008. Due to the nature of this pleading, assent is unnecessary /s/ Sven D. Wiberg