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MOTION TO CONTINUE TRIAL 90 to 120 DAYS The United States of America (hereinafter “the government”) respectfully requests that the trial in the above captioned matter be continued ninety to one hundred twenty days. In support the government asserts the following: Although the Speedy Trial Act requires that a defendant be tried within seventy days from his first appearance before a Judicial Officer, delay resulting from a Court’s continuance may be excludable under 18 U.S.C. 3161(h)(8) if certain prerequisites are met. The continuance may be granted by the Court on its own motion or that of either party. The Court must set forth on the record (orally or in writing) its reasons for finding that the ends of justice served by the granting of the continuance outweigh the interests of the public and the defendant in a speedy trial. United States v. Joost, 133 F.3d 125, 131 (1st Cir.1998); United States v. Fields, 39 F.3d 439 (3d Cir. 1994). The Court may grant the continuance for any number of reasons, only three of which are enumerated in 18 U.S.C. 3l6l(h)(8)(B). Among the permissible reasons are whether the case is so unusual or complex that additional time for preparation is justified, United States v. Reavis, 48 F.3d 763, 770 (4th Cir. 1995), and whether failure to allow delay in a case not unusual or complex would unreasonably deny continuity of counsel or effective and diligent preparation by counsel, United States v. Joost, 133 F.3d 125, 131 (1st Cir. 1998). Daniel Riley was indicted on September 12, 2007 and arrested at his home in New York,
on that same date, where he was brought before a Judicial Officer. Consequently, for Speedy Trial purposes, the clock began to run on September 12, 2007. Counsel for the defendant has filed a Motion to Withdraw, and subsequently a Motion requesting a ruling on that Motion, in which he asserts that the defendant has demanded that counsel not represent him in this case. Due to the state of that relationship, defense counsel could not respond to the government’s request for assent on this Motion to Continue. Because the defendant is represented by counsel, the government has not contacted him directly to seek his assent. Consequently the government does not know whether the defendant assents or objects to this Motion. Whether the defendant assents or objects, for the reasons that follow, the government respectfully submits that a continuance of the trial for ninety to one hundred twenty days is necessary and that the ends of justice served by granting such continuance outweigh the best interests of the public and the defendants in a speedy trial. In part, the facts that gave rise to the defendant’s Indictment are as follows. On or about January 18, 2007, the last day of a trial that started on January 9, 2007, a jury in the United States District Court for the District of New Hampshire returned verdicts convicting Edward Brown and Elaine Brown of conspiracy and a number of federal tax and other financial crimes. The jury returned its verdicts against Edward Brown in his absence. After the third day of evidence, January 11, 2007, Edward Brown returned to his and Elaine Brown’s joint residence at 401 Center of Town Road, in Plainfield, N.H., and never came back to court. On January 12, 2007, a federal warrant was issued for Edward Brown’s arrest based upon his failure to appear for the completion of his trial. Elaine Brown also failed to appear for what was to be the fourth day of evidence but,
after a brief continuance of the proceedings, she returned for the remainder of the trial. Shortly after her conviction, however, she was charged with violating conditions of her release pending sentencing by removing an electronic monitoring ankle bracelet, returning to her residence and reuniting with Edward Brown. A federal warrant was issued for her arrest. On April 24, 2007, Edward Brown and Elaine Brown were each sentenced to sixty-three months in prison. Neither Edward Brown nor Elaine Brown appeared for the sentencing proceeding and the sentences against them were imposed in their absence. After becoming fugitives, the Browns publicly declared their intention to resist, using lethal force if necessary, any effort to arrest them. The Browns made such declarations in television, newspaper, magazine and radio interviews as well as internet websites and postings. On internet websites and postings, the Browns (and their supporters) also urged others to join the Browns at 401 Center of Town Road to assist them in preparing for and executing such resistance. On or about June 6, 2007, to facilitate the Browns’ arrests, the USMS, pursuant to an Order of the United States District Court for the District of New Hampshire, directed that all public utilities and communication service providers stop providing service to 401 Center of Town Road. The United States Postal Service also ceased delivering mail to the Browns. After becoming fugitives, the Browns invited a rotating cast of supporters to enter and remain in their home or on the premises of 401 Center of Town Road for varying periods of time. Certain of those supporters have provided comfort to the Browns by bringing the Browns sustenance, firearms, ammunition, explosive devices, cellular telephones, radios and other communications equipment and other items that would allow the Browns to remain on the property and to discourage, detect and repel, by force if necessary, any attempted arrest.
During the course of the Browns fugitive status the USMS received information that there were numerous firearms located at the Brown residence, 401 Center of Town Road, including .50 caliber Serbu rifles, a 308 semi-automatic rifle, a 223 Ruger Mini-14rifle, a .223 AR-15 rifle, an SKS 7.62 rifle, and a Nigant 7.62 rifle, and that Edward Brown carried a .45 (1911) handgun on his hip or waist band at all times along with a .22 caliber derringer. Additionally it was learned that firearms were placed at strategic locations throughout the Brown’s house, some equipped with scopes and night scopes. Information was also obtained during the course of the Browns’ fugitive status that the Browns and several of their supporters had constructed a defensive perimeter on the Browns’ property around the residence using numerous improvised explosive devices (IEDs) and that there were numerous other IEDs throughout the Brown residence. As is set forth in the pending Indictment the defendant has allegedly engaged in criminal conduct in his efforts to assist the Browns in avoiding apprehension, including conduct in violation of 18 U.S.C. § 924(c). Edward and Elaine Brown were taken into custody on on October 4, 2007 by the USMS and the property and buildings were searched pursuant to federal search warrants. The first search was conducted by the Bureau of Alcohol Tobacco and Firearms (BATF) in conjunction with the USMS to determine whether there were IEDs, firearms and ammunition on the premises and if so to make the property safe. That search took several days and resulted in the seizure of numerous pipe bombs and other IEDs (including cans of gun powder with fuses, cans of gun powder with fuses and with nails taped to the outside of the cans, pipe bombs filled with gun powder & binary explosive chemical mixtures), teargas grenades, numerous firearms, including two .50 caliber rifles, other assault type rifles, shotguns and handguns, along with more than
60,000 rounds of ammunition. Attached as Exhibit #1 is the inventory of items seized by the BARF and the USMS. After the BARF made the property safe, and the explosives, firearms and ammunition were removed, the USMS and the Internal Revenue Service (IRS) began a search of the property. Included in that seizure were several bullet proof vests. Attached as Exhibit #2 is the inventory of property seized by the IRS and the USMS. All firearms, explosive devices (after having been made safe), and ammunition have been sent to the BARF laboratory for forensic analysis. That analysis will include looking for fingerprints and DNA on the various items seized and subsequent laboratory comparisons. Due to the large volume of evidence seized the forensic examination of that evidence will take substantial time. Although the BARF laboratory has prioritized this case above all others, the fingerprint evidence alone is not expected to be completed until December, 2007 at the earliest. Additionally the weapons and the IEDs are being examined for trace amounts of DNA. That analysis will likewise take substantial time. No estimate has yet been made with respect to the DNA analysis. Fingerprint evidence and possible DNA evidence will also be sought on nonweapons related items seized. During the course of the Browns’ fugitive status, the Browns and several of their supporters openly utilized the Internet to post messages and videos relating to their activities in support of the Browns. It was openly acknowledged that the Browns were communicating with their supporters via cellular telephones and via e-mail. Several computers and cell phones were seized at the Brown residence. Forensic examinations of the computers have begun but they are not complete and will not be complete for at least several weeks. Additionally the cell phones that were seized will need to be analyzed.
After the defendant’s arrest at his home several firearms and a computer were seized. The defendant has posted numerous videos of himself on the Internet discussing the Browns’ efforts to avoid apprehension and his, the defendant’s, involvement with them in that regard. At least one such video was actually taken while on the Brown’s property. The computer seized at the defendant’s home has not yet been forensically analyzed. The computer and the firearms will most likely be used as evidence at the defendant’s trial. The evidence seized at the Brown residence will be evidence at the trial of the defendant. Additionally the firearms seized from the defendant’s home will be evidence against the defendant as well. Because none of the evidence seized has been fully analyzed, the defendant has not yet had the opportunity to view, inspect or challenge such evidence. The forensic examinations may produce exculpatory evidence as well as inculpatory evidence. With respect to the speedy trial calendar, there are several motions pending by the defendant that would appear to have created excludable time since October 2, 2007. Specifically, defense counsel filed a Motion to Withdraw on October 2, 2007 and, notwithstanding that he has appointed counsel, the defendant has filed numerous pro se pleadings; the first two having been filed on October 15, 2007 and two more filed on October 18, 2007, all of which are still pending. Whether this Court allows defense counsel to withdraw, and whether the defendant is appointed replacement counsel or is allowed to proceed pro se, the defendant has not yet had the opportunity to review and challenge the government’s evidence in this case and therefore cannot possibly be adequately prepared for the trial now scheduled for November 6, 2007.
Wherefore, the government respectfully requests that the Court find that the ends of justice served by granting a continuance of the trial now scheduled for November 6, 2007 outweigh the best interests of the public and the defendant in a speedy trial. October 24, 2007 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 ASSENT & SERVICE I hereby certify that I have made attempts to obtain assent but for the reasons set forth in the body of this Motion have not been able to determine whether the defendant assents to the relief sought and that a copy of this Memorandum has been served upon defense counsel via ECF filing. /s/ Arnold H. Huftalen Arnold H. Huftalen Assistant U.S. Attorney
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