USA v. Gerhard

Decision Date30 July 2010
Docket NumberNos. 08-2056, 08-2300, 08-2450.,s. 08-2056, 08-2300, 08-2450.
Citation615 F.3d 7
PartiesUNITED STATES of America, Appellee, v. Jason GERHARD, Defendant, Appellant. United States of America, Appellee, v. Cirino Gonzalez, Defendant, Appellant. United States of America, Appellee, v. Daniel Riley, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

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Paul M. Glickman with whom Glickman Turley LLP, was on brief, for appellant Jason Gerhard.

Joshua L. Gordon with whom Law Office of Joshua L. Gordon, was on brief, for appellant Cirino Gonzalez.

Sven D. Wiberg with whom Wiberg Law Office, PLLC, was on brief, for appellant Daniel Riley.

Seth R. Aframe, Assistant United States Attorney, with whom Gretchen Leah Witt, Acting United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SOUTER, Associate Justice, * SELYA, Circuit Judge.

LYNCH, Chief Judge.

Jason Gerhard, Cirino Gonzalez, and Daniel Riley were convicted after actively supporting two convicted criminals during a well-publicized, nine-month standoff with federal authorities, and they now appeal.

These three defendants violated several federal statutes by providing material support to Edward and Elaine Brown, who refused to surrender to face punishment following their January 2007 federal tax convictions. The Browns defied law enforcement authorities from their Plainfield, New Hampshire, property, turning it into an armed camp. U.S. Marshals, having learned from past experiences, were anxious to avoid a violent confrontation; eventually they peacefully apprehended the Browns in October 2007.

Defendants helped acquire firearms and explosives and turn the Browns' property into a potential death trap. They also made statements to the media and through the Internet to the effect that any law enforcement officers who attempted to arrest the Browns would do so at their peril. Defendants were arrested in September 2007.

Defendants were indicted in January 2008 on charges of conspiring to prevent federal officers from discharging their duties, 18 U.S.C. § 372 (Count 1), conspiring to commit offenses against the United States, id. § 371 (Count 2), and being accessories after the fact to the Browns' tax crimes, id. § 3 (Count 3). Each defendant was also charged in an individual count alleging possession of firearms and/or destructive devices in connection with a crime of violence, 18 U.S.C. § 924(c)(1)(A)-(B); Gerhard was charged in Count 4, Gonzalez in Count 5, and Riley in Count 6.

After a twelve-day jury trial, Gerhard and Riley were convicted on all counts against them. Gonzalez was convicted on Counts 2 and 3; the jury hung as to Count 1, the conspiracy-to-prevent charge, and Count 5, which charged him with possessing a firearm in connection with a violent crime. Those counts were dismissed on the government's motion.

Riley was sentenced to 432 months' imprisonment, five years of supervised release, and a $400 special assessment; Gerhard to 240 months' imprisonment, five years of supervised release, and a $400 special assessment; and Gonzalez to 96 months' imprisonment, three years of supervised release, and a $200 special assessment. 1

Defendants now raise a variety of objections. We reject each of their claims and affirm.

I. Factual Background

We describe Edward and Elaine Brown's well-publicized confrontation with federal authorities to set the stage, as well as some of each of the defendant's activities.

The Browns were indicted on April 5, 2006, for conspiracy to defraud the United States, 18 U.S.C. § 371, conspiracy to structure financial transactions to avoid reporting requirements, id., and aiding and abetting the structuring of financial transactions to avoid reporting requirements, 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2. Elaine Brown was also charged with multiple counts of aiding and abetting tax evasion, 26 U.S.C. § 7201 and 18 U.S.C. § 2, and aiding and abetting the willful failure to collect employment taxes, 26 U.S.C. § 7202 and 18 U.S.C. § 2. The Browns' trial began on January 9, 2007.

On January 12, the couple failed to show up for the fourth day of trial. Edward Brown did not appear for the remainder of the proceedings, and, on January 12, the district court issued a warrant for his arrest. The U.S. Marshals Service (“USMS”) convinced Elaine Brown to return for the balance of the trial; as a precaution, the district court barred her from returning to the couple's Plainfield, New Hampshire, property-where Edward Brown was known to be staying-and ordered her to wear a tracking bracelet. On January 18, the jury returned a guilty verdict against both of the Browns on all counts against them. Sentencing was scheduled for April 24, 2007.

On February 20, 2007, Elaine Brown disobeyed the court's orders by removing her tracking bracelet and joining Edward Brown at the Plainfield property. The following day, the court issued a warrant for her arrest. On April 24, the Browns were sentenced in absentia to 63 months' imprisonment on the tax-related charges followed by three years' supervised release. They did not surrender to federal authorities.

The Browns publicly threatened that any efforts to arrest them on their Plainfield property would be met with lethal force. Beginning on January 12, a cadre of supporters, some of them armed, joined Edward Brown on the couple's property. Edward Brown invoked the specter of past violent confrontations with federal law enforcement personnel in Ruby Ridge, Idaho, 2 and Waco, Texas, should federal authorities try to take the Browns into custody. He held widely reported press conferences, gave statements to the media, and contributed to Internet broadcasts in which he warned that anyone who attempted to imprison him or his wife would be killed. He also made threats against the lives of officers and elected officials, as well as their families. Elaine Brown insisted that the couple would either leave their property free or in body bags.

Attracted by these statements, television, print, and electronic media set up shop in Plainfield to report on the standoff.

The USMS, determined to avoid a violent confrontation, “went to extraordinary lengths to insure that [the standoff] would be resolved peacefully without people being injured or killed.” As New Hampshire's U.S. Marshal testified at the defendants' trial:

[A]lmost immediately [Edward Brown] started talking about violence, using violence towards law enforcement if we attempted to go to his house. He talked about Waco and Ruby Ridge. There were supporters there. We knew there were weapons there. So we made a conscious decision in January to proceed in a very deliberate and methodical way to find the best means and the best opportunity to take them safely into custody so that no one got hurt.

From January until mid-June 2007, deputy marshals spoke regularly to the Browns on the telephone, urging them to surrender. The U.S. Marshal also sent the Browns two letters, describing their legal situation and asking them to give themselves up to authorities.

During this period, the USMS did not attempt to enter the Browns' residence, which sat in the middle of their hundred-acre property and had a “very difficult approach.” The USMS began surveillance of the Browns' property in January but carefully avoided encounters with the Browns or their supporters that could have resulted in violence.

Until September 2007, the USMS allowed individuals other than the Browns to enter and exit the property. The USMS hoped this would give them an opportunity to insert undercover deputy marshals and resolve the situation peacefully. The USMS also repeatedly warned the public against giving certain forms of aid to the Browns. The USMS made statements, through the media, “that the Browns were convicted felons, they were resisting government efforts to get them to surrender, that [USMS officers] were aware that they had weapons at their home, that supporters were going there,” and that “if you aid or abet the Browns, you bring them weapons or supplies or aid them in their effort to obstruct justice, that you could be subjecting yourself to arrest and prosecution.”

Despite the USMS's warnings, all three defendants went to New Hampshire to support the Browns after the couple's convictions. Jason Gerhard, then twenty-one years old, from Brookhaven, New York, traveled to the Browns' property several times between February and August of 2007 and lived there for “a while” during this period; Daniel Riley, then thirty-nine years old, from Cohoes, New York, was a regular visitor between March and September 2007; and Cirino Gonzalez, then thirty years old, from Alice, Texas, stayed often with the Browns from early April until late June.

Each of the three defendants came to the New Hampshire property anticipating violence and brought at least one weapon with him to the Browns' home. After assessing the situation firsthand, the defendants each helped prepare the Plainfield property to withstand attempts by the USMS to arrest the Browns. The three worked together to help the couple acquire additional firearms, ammunition, and explosive devices, some of which they placed strategically around the property. Their efforts diminished prospects for a peaceful resolution to the standoff and delayed apprehension of the Browns.

When acquiring and stockpiling weapons for the Browns, the defendants often cooperated closely with each other. For instance, on May 17, 2007, Riley e-mailed Gonzalez to coordinate the purchase of two .50 caliber rifles, capable of firing armor-piercing rounds and equipped with specialized scopes for long-distance shooting. Riley said that Gonzalez would “only need one for the house.” The next day, Riley arranged to meet Gonzalez at a gun shop in Newport, New Hampshire, to fill out necessary paperwork to acquire the guns. On May 23, Gonzalez and Riley met at a Newport...

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