U.S. DISTRICT COURT UNITED STATES DISTRICT COURT —_—GISTRICT OF HH. DISTRICT OF NEW HAMPSHIRE FILED TO FEBTT PT Sy UNITED STATES OF AMERICA MOTION TO. DISMISS WITH ve MEMORANDUM OF LAW DANIEL RILEY, Et al, 1:07-cr-189-GZS COMES NOW, making a special appearance, Daniel Riley, acting in a sovereign capacity, Sui Juris, not Pro Se repeat not Pro Se representing the fiction DANIEL RILEY, and files this motion. In no way can this notice be construed to grant jurisdiction over the defendant, because the defendant’s counsel still contends no jurisdiction exist. In xno way should this notice be construed to be considered a contract, and all rights are reserved at the common law UCC 1-308 and 1-103.6 without prejudice. 1, The defendant makes this motion in accordance with F.R.Cr. P rule 12(b)(2). 2. On February 4, 2008 a suppression hearing was held in regards to incriminating statements the defendant made while incarcerated, which were the subject matter of the hearing. The government appointed Mark Howard to represent the defendant when he made these incriminating statements. 3. At that hearing the government presented two witnesses, Marshal Jamie Berry, who participated in the proffer sessions with the defendant and the defendant’s first government appointed attorney Mark Howard, which was appointed against the wishes of the defendant. 4. Jamie Berry testified that AUSA Robert Kinsella, went over the proffer letter with the defendant, prior to starting the proffer session, but never heard anything mentioned about a Kastigar hearing. Jamie Berry testified that he never remembered a Miranda warning being given to the defendant, 5. Jamie Berry testified that he knew nothing of a promised release to the defendant if he cooperated with the government. He did remember Marshal Labier had ‘made comments about a release during the second proffer session. 6. Jamie Berry testified that he knew Mark Howard worked with the United States Attorney’s office just less than a year prior and had seen Mr. Howard in the hallways of the United States Attorney's office.7. ‘ext, Mark Howard testified that he knew the defendant was reluctant to accept a lawyer td thatthe defendant hed never requested a lawyer. 8. Mark Howard testified that that he did explain to the defendant that he was a former prosecutor but never mentioned he worked less than a year ago for the United States in the very same United States Attomey’s office that was now trying to prosecute the client he wished to represent. Mark Howard also testified he would be willing to go to trial if the case went that far. 9. Mark Howard testified he was friends with the two Assistant United States Attorneys (Kinsella and Huftalen) that were now prosecuting the defendant but never discussed the case off the record. Mr. Howard never mentioned these conflicts of interest to the defendant at all 10. _ Mark Howard testified he was a former supervisor of violent crimes, supervisor of criminal appeals, and worked with Kinsella and Huftalen in both of theses areas, exclaiming he would write some of the appeals for Kinsella and Huftalen. Mr. Howard never told the defendant about any of these conflicts of interest 11, Mark Howard testified he knew of the Brown’s case, and that it was being investigated out of the very U.S. Attorney’s office he worked in. The defendant’s case is directly related to the Brown’s case. Mr. Howard testified he was not part of that investigation but knew of it. Mr. Howard never told the defendant of this conflict in interest. 12. Mark Howard testified he knew who Marshal Jamie Berry was and that he knew him from the U.S. Attorney’s office. He also testified he worked with U.S. Marshals, ATF, IRS and FBI when he was at the United States Attorney's office. All these agencies were and are involved in the defendant's case. Mr. Howard never told the defendant of these conflicts of interest. 13. Mark Howard testified his brother Jeffery is a judge on the First Circuit Court of Appeals and that he never told the defendant of this possible conflict if the case were to go to appeal. 14, Mark Howard testified he knew of no conflicts of interests that would stop him from representing the defendant, even though he worked for the very client (U.S. Attorney) less that a year ago that is now prosecuting him, that he was friends with the Prosecutors, that he was acquainted with some of the Marshals in the case and that he used to be in a supervisory role over the very prosecutors pursuing the case against the defendant. 15. Mark Howard testified he knew of no conflicts of interests that would stop him from representing the defendant even though the defendant is charged with offenses related to the Browns(un-indicted coconspirators) and that Mark Howard knew that the Brown investigation was and had occurred out of the very office he used to work in.16. Mark Howard testified he explained the proffer letter to the defendant in detail, in private. Mr. Howard explaiced that the profiér room was cleared out so he could g0 over the proffer letter with the defendant. Then called everyone back in when he was done explaining the letter. 17. Mr. Howard also testified that Mr. Kinsella explained it in more detail to the defendant then he did at the beginning of the proffer session. Mr. Berry testified he watched and heard AUSA Kinsella explain the proffer letter to the defendant but never heard the word Kastigar mentioned at all. Therefore, if Mr. Kinsella explained the letter in more detail as Mr. Howard testified, then Mr. Howard never explained the proffer letter in detail to the defendant as he testified. The waiver of the Kastigar hearing is the ‘most important part of the proffer letter, which was never explained to the defendant at all. 18. Mark Howard testified that a possible release was on the table if the defendant cooperated with the government via a conversation he had with Mr. Kinsella prior to the proffer session. 19. Mark Howard testified that he told the defendant that a release was possible if the defendant “WOWED” the government with his cooperation and was truthful. He also testified that the defendant’s cooperation could put him in the best possible position during sentencing. 20. Mark Howard testified that at the second profiér session when Marshal Andre Labier exclaimed that there was no way the defendant was being released, that even he was surprised. 21. — Mark Howard testified that the second proffer session was stopped after Marshal Labier’s comments regarding a possible release. Mr. Howard testified that him and AUSA Huftalen went out to the hallway. After coming back in Mr. Huftalen told the defendant that a possible release was still on the table and that the Marshals do not make that decision that he did. 22. Mark Howard testified the defendant participated in one more short proffer session after that. Mark Howard testified that he was a member of the New Hampshire BAR Association. 23. Next, the defendant RILEY called himself as a witness at the suppression hearing after Jamie Berry and Mark Howard had testified. Riley exclaimed that they were here today to determine if the defendant knowingly, willingly, intelligently, and voluntarily waived his right against self incrimination and whether I had my right to counsel deprived and my right to represent myself deprived. 24. RILEY testified that at the bail hearing on September 13, 2007 he never wanted a lawyer, he wanted to represent himself and gave judicial notice to court via the probation person named Dan.