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 SEVER

The United States of America, by and through its

undersigned counsel, objects to defendant Daniel Riley’s Motion

for Severance.

I. Introduction

Defendant Daniel Riley was charged in a Superseding

Indictment with three co-defendants, Jason Gerhard, Cirino

Gonzalez and Robert Wolffe. Count One charges all four

defendants with conspiracy in violation of Title 18, United

States Code, Section 372, conspiracy to prevent officers of the

United States from discharging their duties. Count Two charges

all four defendants with conspiracy in violation of Title 18,

United States Code, Sections 371, 111(a)(1) and 3, conspiracy to

commit offenses against the United States. Count Three charges

all four defendants with being accessories after the fact in

violation of Title 18, United States Code, Section 3. Count

Four charges defendant Riley with a substantive violation of

Title 18, United States Code, Section 924(c)(1)(A)(I). Counts

Five through Ten each charge defendant Gerhard with substantive

violations of Title 18, United States Code, Section

924(c)(1)(A)(I). Count Eleven charges defendant Gonzalez with a

substantive violation of Title 18, United States Code, Section

924(c)(1)(A)(I).

The United States' trial evidence will consist, in part,

of the following: Edward and Elaine Brown were both convicted

after trial, in this Court, of several tax related felonies.

The Browns failed to appear for sentencing and failed to

surrender as ordered by the Court to serve their sixty three

month prison sentences. Rather, the Browns solicited support of

many individuals in their publicly avoid intention to remain at

their home in Plainfield, NH and resist by force and violence

any attempts by law enforcement to take them into custody.

Defendant Riley, and each of his three co-defendants, each

provided support to the Browns by their physical presence at the

Browns’ residence while the Browns were in fugitive status, and

by providing material support, including firearms, in some cases

ammunition, and with respect to Mr. Riley, explosives. As to

the 18 U.S.C. § 924(c) charges, the evidence of those violations

is also evidence in both conspiracies, as is set out in detail

in the Superseding Indictment. The trial evidence will

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establish that each of the three defendants charged with

firearms offenses, including Mr. Riley, purchased firearms

during the relevant time period and carried and possessed

firearms in connection with crimes of violence.

Presently before the Court is defendant Riley’s motion for a

severance. Defendant makes no legal argument in favor of his

Motion for Severance and supplies no citation to controlling

law. Nor does he make factual arguments in support thereof. He

merely states that he “moves this court to grant a severance ...

.” Defendant’s Motion for Severance at page 1, paragraph number

2.

II. The Law

It is fundamental law that persons who are indicted

together should be tried together. Zafiro Et Al. v. United

States, 113 S.Ct. 933 (1993). In United States v. Tajeda, 481

F.3d 44, 54 (1st Cir. 2007) the First Circuit recently reaffirmed

that fundamental holding by noting that “[o]rdinarily, criminal

co-defendants are to be tried together.” (citing United States

v. Houle, 237 F.3d 71, 75-76 (1st Cir.2001)). See also, e.g.

United States v. Peña-Lora, 225 F.3d 17, 33 (1st Cir.2000);

United States v. Pierro, 32 F.3d 611, 615 (1st Cir.1994).

Although that rule is subject to exceptions, the burden is on

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defendant Riley to make a convincing showing of prejudice.

United States v. Vega Molina, 407 F.3d 511, 531 (1st Cir. 2005)

(citing United States v. Boylan, 898 F.2d 230 (1st Cir. 1990)).

In determining the propriety of trying two or more

defendants together, a Court looks to Fed. R. Crim. P. 8(b).

Rule 8(b) allows joinder of defendants if they are alleged to

have participated in the same series of acts or transactions

constituting an offense.1 See, e.g., United States v.

Sutherland, 929 F.2d 765, 778 (1st Cir.), cert. denied sub nom.,

Fini v. United States, 112 S.Ct. 83 (1991). Under Rule 14 of

the Federal Rules of Criminal Procedure,2 however, if a

1
Fed. R. Crim. P. 8(b) provides:

(b) Joinder of Defendants. Two or more defendants may

be charged in the same indictment or information if
they are alleged to have participated in the same act
or transaction or in the same series of acts or
transactions constitutingan offense or offenses. Such
defendants may be charged in one or more counts
together or separately and all of the defendants need
not be charged in each count.

See Fed. R. Crim. P. 8(b).

2
Fed. R. Crim. P. 14 provides, in pertinent part:

Rule 14. Relief from Prejudicial Joinder

If it appears that a defendant or the government is

prejudiced by a joinder of offenses or of defendants
in an indictment or information or by such joinder for

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defendant demonstrates that joinder will prevent him from

receiving a fundamentally fair trial, his trial will be severed

from that of the other joint defendants. A defendant,

therefore, may obtain a severance if he can show substantial

prejudice, amounting to a miscarriage of justice, would result

from a joint trial. United States v. McLaughlin, 957 F.2d 12, 18

(1st Cir. 1992); United States v. Tejeda, 974 F.2d 210, 219 (1st

Cir. 1992); United States v. Perkins, 926 F.2d 1271, 1280 (1st

Cir. 1991); United States v. Alemany Rivera, 781 F.2d 229, 238

(1st Cir. 1985), cert. denied, 475 U.S. 1086 (1986).3

Defendant Riley has not raised, has not briefed and has not

argued any legal or factual basis in support of his Motion for

trial together, the court may order an election or

separate trials of counts, grant a severance of
defendants or provide whatever other relief justice
requires.

See Fed. R. Crim. P. 14.

3
The decision to grant or deny a motion to sever is a
matter committed to the sound discretion of the trial judge and
will be reversed only upon a showing of manifest abuse. Opper
v. United States, 348 U.S. 84, 94-95 (1954); United States v.
Tajeda, 481 F.3d 44, 54 (1st Cir. 2007); United States v. DeLeon,
187 F.3d 60, 63 (1st Cir.1999); ; United States v. Olivo-
Infante, 938 F.2d 1406 (1st Cir. 1991); United States v.
Martinez, 922 F.2d 914, 922 (1st Cir. 1991); United States v.
Gomez-Pabon, 911 F.2d 847, 859 (1st Cir. 1990); United States v.
Boylan, 898 F.2d 230 (1st Cir. 1990).

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Severance. Nonetheless, the government submits that a

defendant's showing of prejudice, even if it were attempted

here, must, be strong. Zafiro, supra ("a district court should

grant a severance under Rule 14 only if there is a serious risk

that a joint trial would compromise a specific trial right of

one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence"); United States v.

Martinez, 922 F.2d 914, 922 (1st Cir. 1991) ("[a]t the trial

level, defendant's burden is an exacting one: a separate trial

will be ordered only upon "a strong showing of prejudice"");

United States v. Aponte-Suarez, 905 F.2d 483, 494 (1st Cir.),

cert. denied, 111 S.Ct. 531 (1990). This requires the defendant

to show something more than merely a better chance of acquittal.

See, e.g., United States v. Diallo, 29 F.3d 23, 27 (1st Cir.

1994) ("[p]rejudice in this context `means more than just a

better chance of acquittal at a separate trial'"); United States

v. Martinez, 922 F.2d 914, 922 (1st Cir. 1991) (quoting United

States v. Martinez, 479 F.2d 824, 828 (1st Cir. 1973)); United

States v. Moreno Morales, 815 F.2d 725, 741 (1st Cir.), cert.

denied, 484 U.S. 966 (1987).

Severance is not required, for example, simply because the

government's evidence against one defendant may be stronger than

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evidence against another defendant. United States v. Cresta,

825 F.2d 538, 554-55 (1st Cir. 1987) (fact that a substantial

portion of the evidence is not directly related to the defendant

does not make it automatically unlawful to try him with other

defendants), cert. denied sub nom., Impemba v. United States,

486 U.S. 1042 (1988); United States v. Silvestri, 790 F.2d 186,

189 (1st Cir.), cert. denied, 479 U.S. 857 (1986); United States

v. Smolar, 557 F.2d 13, 18 (1st Cir.), cert. denied, 434 U.S.

971 (1977). Nor does incidental prejudice, such as that which

is almost always encountered when multiple defendants playing

different roles are tried together, require severance. United

States v. Martinez, 922 F.2d 914, 922 (1st Cir. 1991); United

States v. Cresta, 825 F.2d 538, 554-555 (1st Cir. 1987), cert.

denied sub nom., Impemba v. United States, 486 U.S. 1042 (1988).

In United States v. Cresta, 825 F.2d 538 (1st Cir. 1987), cert.

denied sub nom., Impemba v. United States, 486 U.S. 1042 (1988),

for example, a case involving a multi-defendant narcotics

conspiracy, the Court denied defendant's motion for severance,

stating:

The primary contention of the appellants is that they

were comparatively minor figures in a complex
conspiracy, and that there was a large disparity in
the amount and strength of the evidence against all
the defendants. However, the fact that the defendant

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 plays a minor role and that a substantial portion of
the evidence is not directly related to the defendant,
does not make it automatically unlawful to try him
with more important figures. United States v. Rawwad,
807 F.2d 294, 295 (1st Cir. 1986), cert. denied, 482
U.S. 909 (1987). There is a possible risk of
prejudice that almost always exists when multiple
defendants with different roles are tried together,
but here defendants have failed to show anything
greater. See United States v. Palow, 777 F.2d 52, 56
(1st Cir. 1985), cert. denied, 475 U.S. 1052 (1986).
Furthermore, the trial court judge made clear to the
jury in the instructions that they must consider the
evidence separately against each defendant and on each
count. See United States v. Luna, 585 F.2d 1, 5 (1st
Cir.), cert. denied, 439 U.S. 852 (1978) . . . We
believe that these jury instructions sufficiently
safe-guarded the appellants against "spillover" from
their co-defendants' cases. See United States v.
Rawwad, supra, 807 F.2d at 296. This trial of ten
defendants on a two-count indictment charging all of
them with two closely related conspiracies arising out
of the same events and evidence clearly called for a
consolidated proceeding.

Cresta, 825 F.2d at 554-555.

Much like the defendants in Cresta, defendant Riley has

failed to demonstrate prejudice resulting in a complete

miscarriage of justice. See, e.g, United States v. McLaughlin,

957 F.2d 12, 18 (1st Cir. 1992); United States v. Tejeda, 974

F.2d 210, 219 (1st Cir. 1992); United States v. Alemany Rivera,

781 F.2d 229, 238 (1st Cir. 1985), cert. denied, 475 U.S. 1086

(1986) (severance motion will be reversed only upon appellant's

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maintenance of the heavy burden of showing substantial prejudice

amounting to a miscarriage of justice).

Furthermore, an evidentiary "spill-over" argument, as

demonstrated in Cresta, 825 F.2d at 554-555, that defendant

Riley might make, does not suffice to warrant a severance.

There is a possible risk of prejudice that almost always exists

when multiple defendants with different roles are tried

together, but here defendant has failed to even make the

argument, let alone show anything greater. See, e.g., United

States v. Palow, 777 F.2d 52, 56 (1st Cir. 1985), cert. denied,

475 U.S. 1052 (1986). Indeed, as noted by the First Circuit in

United States v. Welch, 15 F.3d 1202 (1st Cir. 1993),

"[a]dequate safeguards are available to protect against undue

prejudice from evidentiary spillover . . .. For example, the

district court carefully cautioned the jury . . . to consider

the evidence against each individual defendant." Accordingly,

"[a]bsent a contrary showing or some evidence of an

extraordinary impediment," see id. at 1210, citing United States

v. Figueroa, 976 F.2d 1446, 1452 (1st Cir. 1992), the First

Circuit will "recognize the ability of the trial jury to abide

by cautionary and limiting instructions aimed at minimizing the

mundane risks of evidentiary spillover." Id.

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 The government's witness list in the trial of the present

case will included witnesses, some traveling from remote states,

who will testify concerning not only defendant Riley, but other

defendants as well. The trial of all defendants in the same

Indictment, including multiple conspiracies in which all

defendants are charged, arising out of the same events and

evidence clearly calls for a consolidated proceeding. The

witnesses who will testify to the conspiratorial involvement of

the defendant are the same witnesses who will testify regarding

the conspiratorial involvement of his co-defendants. The

obvious inconvenience to the government and its witnesses which

would result from separate trials, as well as the unwarranted

imposition that multiple trials would have upon the Court,

clearly weighs against severance. See United States v. Diallo,

29 F.3d 23, 28 (1st Cir. 1994) ("where separate trials would

have necessarily involved repetitive use of most of the same

evidence and same facts, we find no possibility of such an abuse

of discretion absent a clear showing of substantial prejudice to

the defendant") (quoting United States v. Ciampaglia, 628 F.2d

632, 643 (1st Cir.), cert. denied, 449 U.S. 956 (1980).

Accordingly, defendant's request for severance should be denied.

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III. Conclusion

For the foregoing reasons, the United States respectfully

requests that the Court deny defendant's Motion for Severance.

January 7, 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 via US Mail to defendant Daniel Riley this date and
that a hard copy will be delivered to defendant Daniel Riley in
hand Tuesday, January 8, 2008.

/s/ Arnold H. Huftalen

Arnold H. Huftalen
Assistant U.S. Attorney

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