UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Cr. No. 07-189-01-GZS

Daniel Riley, et al.

UNITED STATES' OBJECTION TO

DEFENDANT RILEY'S MOTION TO SUPPRESS EVIDENCE

The United States of America, by and through its

undersigned counsel, objects to defendant Daniel Riley’s Motion

to Suppress Evidence, docket #102.

As written, the defendant’s Motion seeks to suppress

statements he made during proffer sessions with the government.

After his arrest on September 12, 2007 the defendant, while

accompanied by counsel, met with the government for three formal

proffer sessions on September 19, September 20, and September

24, 2007. Prior to beginning the first proffer session a

Kastigar proffer agreement letter was presented to Mr. Riley and

his attorney. One of the two Assistant U.S. Attorneys present

reviewed in detail the terms and conditions of the proffer

agreement. After Mr. Riley expressly advised that he understood

and accepted the terms of the agreement he and his attorney

signed the agreement which was also signed by Assistant U.S.

Attorney Robert M. Kinsella. A copy of that two page Kastigar

proffer agreement letter is filed herewith as Exhibit #1.

 As noted on the record at the pretrial conference held

January 8, 2008, consistent with the express terms of the

proffer agreement at paragraph (1), the government does not

intend to offer statements made by the defendant pursuant to the

proffer agreement in its case in chief. The government reserves

the right, consistent with the express terms of the proffer

agreement at paragraph (2), to use any such statements made by

the defendant in rebuttal if the defendant violates the terms of

the proffer agreement and testifies contrary to anything he said

in the proffer sessions.

Therefore, the government submits that the defendant’s

Motion to Suppress Evidence, as filed, is moot.

However, while at the pretrial hearing held on January 8,

2008, the defendant made statements not previously raised

concerning derivative use of information obtained pursuant to

the above referenced proffer agreement. The government submits

that the Kastigar proffer agreement is a contract and that the

express terms of that contract, at paragraph (3) permit

derivative use. Paragraph (3) states:

(3) The government may make derivative use of and

may pursue investigative leads suggested by any
statements made by Mr. Riley or other information
provided by him, for any purpose. This provision
eliminates the necessity for a Kastigar hearing at

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 which the government would otherwise be required to
prove that the evidence it would introduce in any
trial or other proceeding is not tainted by any
statements made by or other information provided by
Mr. Riley during any proffer.

The express provision concerning derivative use clearly allows

the government to make such derivative use.

The Eleventh Circuit Court of Appeals in United States v.

Pielago, 135 F.3d 703, 710-11 (11th Cir. 1998) addressed a

similar issue and held that the provision of the proffer

agreement in that case, which also reserved derivative use, was

a modification of the provision that provided that statements

made during the proffer would not be used against the defendant

and therefore it was proper for the government to find a witness

and use that witness against the defendant even though the

government would not have found the witness but for the proffer

statements. In that case, the Court noted that “[t]he

construction of proffer agreements, like plea agreements, is

governed generally by the principles of contract law, as we have

adapted it for the purposes of criminal law.” Id. at 709

(citations omitted). With respect to derivative use, the Court

stated, “[t]he government was only forbidden from introducing

[the defendant’s] statements and the information she provided

into evidence against her, and did not violate the proffer

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agreement by putting Hechavarria [the witness found as a result

of a proffer statement by the defendant] on the stand.” Id. at

711.

As the opinion in Pielago makes clear, the provisions of

the proffer agreement there were quite similar to those at issue

here. As the Court in Pielago held, that the proffer agreement

allowed for the derivative use, so too should this Court.

The defendant raised, for the first time at the pretrial

conference another issue. He alleged that he was somehow

induced by his attorney, through misrepresentation that he would

be released on bail if he engaged in the proffer session(s),

into making the proffered statements and but for those

misrepresentations trickery he would not have made any proffer

statements. The defendant went on at the pretrial conference to

say that when one of the government agents (Inspector LaBier)

told him he would not be released on bail he realized that he

had been tricked. Consequently, implies the defendant,

derivative use is forbidden.

The problem for the defendant is that if Inspector LaBier,

or other persons present at the proffer sessions were to

testify, the testimony would be that the statement by Inspector

LaBier took place during the second proffer session. Not only

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did the defendant continue to provide statements and information

after that event during the second proffer session, he came back

four days later and sat through a third proffer session, during

which he provided additional statements and information.

Even after the Court had appointed the defendant’s current

stand by counsel Mr. Riley came back to the United States

Attorney’s Office for two subsequent meetings. His new

attorney, Sven Wiberg, specifically inquired whether the

original proffer agreement was still in effect and was told,

yes. Those two subsequent meetings (after the third proffer

session) were to discuss the possible terms of a plea. Although

they were not “proffer sessions” and therefore reports of

interview were not generated, the defendant spoke candidly in

both meetings concerning the facts of this case and made certain

admissions.

The fact that he: 1) continued to make statements and

provide information after he supposedly realized that he had

been tricked during the second proffer session; 2) came back for

a third proffer session; and, 3) came back two more times with

new counsel after the third proffer session, belies any credible

contention he may make now make that he did not knowingly and

voluntarily agree to provide information subject to derivative

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use, or that he had somehow been tricked. Mr. Riley had the

advice of two separate experienced criminal defense attorneys.

He was expressly informed concerning the provisions of the

proffer agreement before he spoke. He signed the proffer

agreement, as did his first attorney. He spoke with the

government in three separate proffer sessions and two instances

thereafter. All pursuant to the terms of the proffer agreement,

which expressly reserved the government’s right to make

derivative use of the statements and information he provided.

Wherefore, the United States objects to defendant's Motion to

Suppress Evidence and respectfully requests that it be denied.

January 15, 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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