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 DISMISS FOR PROSECUTORIAL MISCONDUCT (docket #200)

The United States of America objects to defendant Daniel

Riley’s Motion to Dismiss for Prosecutorial Misconduct, docket

#200, which seeks the dismissal of all charges.

The defendant makes three claims. First, that the

government told him if he did not cooperate, and instead went to

trial, additional charges would be filed. Motion at ¶ 4.

Second, that the government brought additional charges because

the defendant did not accept a plea offer. Id. at ¶ 6. And,

third, that the government has made extrajudicial false

statements. Id. at ¶¶ 10 & 11.

Taking the defendant’s last claim first, on January 23,

2008 the defendant filed a “Motion to Dismiss for Prosecutor's

Pretrial Publicity Against Defendant Causing Prejudice” (docket

#210) which was based on the same allegations as those raised

here. On January 25, 2008, the Court issued an Endorsed Order

denying the Motion stating, “Denied. Article indicates that the

statements by Attorney Huftalen were made during the course of

an in-court proceeding.” On January 30, 2008 the defendant

filed a Motion for Reconsideration which the Court denied on

January 31, 2008. Therefore, the government submits that those

allegations, claiming extrajudicial statements, have already

been addressed by the Court and need no further attention here.

With respect to the remaining two allegations, which will

be treated together, the government submits they are false. And

with respect to some, the defendant’s own pleading belies any

finding to the contrary.

The government did tell the defendant that he faced

possible charges that would carry a minimum mandatory 30 year

consecutive prison sentence if the lab provided supporting

evidence, which the government anticipated would be forthcoming

but which only came from the lab shortly before the explosives

charges were brought. But at no point did the government

threaten to bring those charges if the defendant did not

cooperate or plead guilty. At paragraph 4 the defendant states

that Attorney Sven Wiberg was a witness to the alleged threats

made to compel his cooperation. But Attorney Wiberg was not

appointed until after the defendant’s three proffer sessions had

been concluded. Attorney Wiberg only became involved in the

case after Attorney Howard’s Motion to withdraw was granted.

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All three proffer sessions were conducted with Attorney Howard.

Consequently, the allegations to coerce cooperation were

allegedly made after the defendant had already cooperated. He

had by then already provided detailed information concerning the

Browns and his other co-conspirators.

As to the allegations that the explosives charges were

brought as a result of the defendant’s exercise of his right to

a trial, he is again wrong. The government had advised the

defendant on numerous occasions that although it did not yet

have the conclusive evidence it needed to go forward with

explosives charges, it anticipated that the evidence would be

forthcoming and such charges would be brought. Which is why,

when the defendant and his new Attorney, Mr. Wiberg, met with

the government on two instances at the U.S. Attorney’s Office in

Concord, NH, he was specifically advised that the plea offer

being made to him required that he plead guilty to an

Information charging a single violation of 18 U.S.C. §

924(c)(1)(A)&(B)(ii), carrying a minimum mandatory 30 year

prison sentence. In addition, the proposed Plea Agreement

contained a binding stipulation that the defendant would be

sentenced to a period of 30 years in prison unless the

government filed a motion for reduction under 18 U.S.C. §

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3553(e). There was significant discussion concerning what might

trigger a motion for reduction. The defendant stated that he

understood the terms of the offer. There were other subsequent

offers as time went by,1 all of which the defendant ultimately

declined. At no time did the government threaten to bring

additional charges if the defendant did not cooperate or did not

plead guilty. The reality of a 30 year sentence was on the

table from the first meeting with Attorney Wiberg.

Notwithstanding the defendant’s allegations that the

government could have indicted him at any time on the explosives

charges, that is simply not true. As the government has advised

the Court previously, only days before the charges were brought

did the government get the confirming information from the lab

which allowed for presentation of those charges to the Grand

Jury.

It is beyond peradventure that a prosecutor may not act

vindictively by bringing additional or more serious charges

because a defendant has exercised his Constitutional rights. It

1
The one and only time when a plea offer was made to the
defendant which required less than a plea to a 30 year sentence
was done after the government had advised, in open Court on
Tuesday, January 8, 2008 at the preliminary pretrial conference,
that it intended to present a Superseding Indictment to the
Grand Jury including the explosive charges the following day.

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is also clear that a Federal Court may dismiss an indictment if

there is actual vindictiveness sufficient to establish a due

process violation, or if a likelihood of vindictiveness is

demonstrated sufficient to justify a presumption. See United

States v. Stokes, 124 F.3d 39, 45 (1st Cir. 1997). However,

“courts should go very slowly in embracing presumptions of

prosecutorial vindictiveness in pretrial proceedings.” Id.

citing United States v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. at

2492.

Although the allegations of bringing more serious charges

if the defendant did not cooperate or plead guilty are false,

even if they were true such would not be cause to dismiss the

charges. The mere filing of new charges is not vindictive. As

the First Circuit noted in United States v Young, 955 F.2d 99

(1st Cir. 1992):

[o]f course, a prosecutor may not behave vindictively.

See United States v. Marrapese, 826 F.2d 145, 147 (1st
Cir.), cert. denied,484 U.S. 944, 108 S.Ct. 331, 98
L.Ed.2d 358 (1987). But, the mere bringing of a new
indictment with added counts is not in itself
vindictive behavior, nor does it raise a presumption
of vindictiveness sufficient to require investigation
of grand jury minutes. United States v. Goodwin, 457
U.S. 368, 382, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74
(1982) (no presumption of vindictiveness where
prosecutor brought four count felony indictment after
defendant demanded jury trial on single misdemeanor
count).

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Id. at 109.

Even if the government had threatened to bring more serious

charges during plea negotiations, which it did not, such would

not, in and of itself, warrant dismissal. In United States v.

Lanoue, 137 F.3d 656 (1st Cir. 1998) the Circuit Court of Appeals

held:

[t]he fact that the government followed through on a

threat it made during plea bargain negotiations does
not, by itself, constitute prosecutorial misconduct.
See Bordenkircher, 434 U.S. at 365, 98 S.Ct. at 669.
Furthermore, even if Lanoue had raised a presumption
of vindictiveness, the government adequately rebutted
this presumption by presenting sufficient reasons for
bringing the belated § 922(g)(1) charge.

Id. at 665.

Whereas the defendant has not pointed to specific facts

that raise a likelihood of vindictiveness, the Court should deny

the Motion without a hearing. See Lanoue, 137 F.3d at 665.

Wherefore, the United States respectfully requests that the

defendant’s Motion to Dismiss for Prosecutorial Misconduct,

docket #200, be denied.

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February 1, 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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