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 FOR DISCOVERY (Docket #237)

The United States of America objects to defendant Daniel

Riley’s Motion for Discovery (docket #237) as follows.

As a preliminary matter, the government has engaged in

virtually open file discovery. Pursuant to Federal Rules of

Criminal Procedure, 12.1, 16 and 26.2, Brady v. Maryland, 373

U.S. 83, 84-87 (1963), and Giglio v. United States, 405 U.S. 150

(1978), and their progeny, the government has already disclosed

to the defendant all discoverable material in its possession and

it will continue to disclose material as it becomes available.

To the extent any Jencks Act material has not already been

disclosed it will be disclosed no later than one week before

trial.

The government has attempted to identify and respond to

each request made by the defendant and will address the

defendant’s request in the order he has raised them.

Defendant Riley’s Requests

Paragraph 3

At paragraph 3 the defendant seeks all notes of agents at

his three proffer sessions as well as any recordings made. No

recordings were made. The defendant has already been provided

with copies of the reports prepared of each of the three proffer

sessions, which satisfies Rule 16(A)(1)(a). The handwritten

notes of United States Marshals Service (USMS) personnel present

have not been disclosed but to avoid unnecessary wrangling the

government will produce the handwritten notes. This request is

moot.

Paragraph 4

At paragraph 4 the defendant seeks information similar to

that requested in paragraph 3 but with respect to interviews of

others, including co-defendants and unindicted co-conspirators.

Co-defendant Robert Wolffe was interviewed twice. No interviews

were recorded.1 The reports of those interviews have been

disclosed. The handwritten notes of USMS personnel present

during the interviews have not been disclosed but to avoid

1
When co-defendant Gerhard was arrested a video tape was
made of him in which he did not speak. That video has already
been disclosed.

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unnecessary wrangling the government will produce the

handwritten notes.

The other two co-defendants have not been interviewed. As

to other people interviewed, all interview reports have been

disclosed. This request is moot.

Paragraphs 5, 6, 7 & 8

At paragraphs 5 through 8 the defendant seeks a photograph

that was identified as being of defendant Riley and others in

the original Indictment. In subsequent Indictments the

photograph at issue has been appropriately identified as

depicting persons other than defendant Riley. This request is

moot.

Paragraph 9

At paragraph 9 the defendant seeks numerous items,

including handwritten notes, training records, disciplinary

records, interviews of neighbors of the Browns, in and around

June 6 & 7, 2007 relating to certain named USMS personnel “and

all other government agents.” He also seeks the type and serial

number of firearms issued to members of the USMS.

All reports of interview have been disclosed. As to the

remainder of the request, the government objects because the

defendant's request exceeds the requirements of disclosure

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within the meaning of Brady v. Maryland, 373 U.S. 83 (1963),

Giglio v. United States, 405 U.S. 150 (1972), United States v.

Agurs, 427 U.S. 97 (1976), and United States v. Bagley, 473 U.S.

667 (1985). A defendant’s request for discovery must be, among

other things, specific. See e.g. U.S. v. Price, 75 F.3d 1440,

1444-45 (10th Cir. 1996)(discovery denied because motion

contained only “bare references” and were “entirely without

detail”); U.S. v. Jordan, 316 F.3d 1215, 1250 (11th Cir.

2003)(discovery demand denied because overly vague; “defendant

must make a specific request for an item” and explain how it

will benefit defense).

The defendant does not allege any legal justification, any

factual basis, or necessity for his excessive demand for such

information. Brady is not a rule of pretrial discovery.

Rather, the purpose of Brady is to prohibit the prosecution from

intentionally withholding evidence favorable to the defendant

which if suppressed would deprive the defendant of a fair trial.

United States v. Valencia-Lucena, 925 F.2d 506, 514 (1st Cir.

1991) (quoting United States v. Bagley, 473 U.S. at 675).

Nevertheless, the government has disclosed, and will

continue to disclose, any and all exculpatory material in

advance of trial, as required. In the event the government is

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unsure whether certain material or information constitutes

exculpatory evidence and it does not disclose it to the

defendant, it will submit such material or information to the

Court for in camera review.

As to rough notes, training records, and disciplinary

records the government objects as defendant's request exceeds

the scope of Fed. R. Crim. P. 16(a)(1). Indeed, such a request

is specifically excluded under Fed. R. Crim. P. 16(a)(2). See

Fed. R. Crim. P. 16(a)(2) ("this rule does not authorize the

discovery or inspection of reports, memoranda, or other

government documents made by . . . government agents in

connection with the investigation or prosecution of the case").

See also Campbell v. United States, 296 F.2d 527, 531-32 (1st

Cir. 1961) (Court rejected suggestion that F.B.I. had a duty to

preserve notes).

Additionally, the government objects to the disclosure of

any information that identifies the make, model or serial number

of any USMS, or other law enforcement agency, firearms,

ammunition or non-lethal weapon on the ground that such

disclosure would reveal privileged sensitive law enforcement

information. Particularly in this case, given the nature of the

charges which include conspiracy to use force and violence

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against federal law enforcement officers, disclosing weapons and

munitions information of federal law enforcement would be

dangerous.

Paragraph 10

At paragraph 10 the defendant seeks notes, training

records, disciplinary records, and other reports “from any of

the government agents in and around the Browns[‘] property on

July 28 & 29, 2007.” The government objects because the request

is vague and overly broad. The defendant has not identified

legally, or factually, any theory under which he would be

entitled to that which he seeks. The government incorporates by

reference its objections in prior and subsequent paragraphs, to

the extent they are applicable here.

Paragraphs 11, 12, 13 & 14

At paragraphs 11 through 14 the defendant seeks information

relating to a helicopter owned by the United States Department

of Homeland Security that was flown on July 14, 2007 in the

vicinity of the Brown residence. He specifically seeks the

names of individuals who flew and/or were in the helicopter,

handwritten notes “by any government agent concerning this

helicopter” (Motion @ ¶ 11), as well as the year, make model and

any modifications made, and any “weapons on board (physically

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attached to the helicopter or on a person inside the helicopter)

... “ (Motion @ ¶ 13) as well as information concerning any

recording devices and any video, pictures or audio which may

have been created.

Certain limited video recordings were made from that

helicopter and they have recently been produced.

These requests are vague, overly broad, and exceed any

requirements of disclosure. The defendant has not identified

legally, or factually, any theory under which he would be

entitled to that which he seeks. The government incorporates by

reference its objections in prior and subsequent paragraphs, to

the extent they are applicable.

Additionally, the government objects to the disclosure of

any information that identifies the make, model or serial number

of any USMS, or other law enforcement agency, firearm,

ammunition or non-lethal weapon on the ground that such

disclosure would reveal privileged sensitive law enforcement

information. Particularly in this case, given the nature of the

charges which include conspiracy to use force and violence

against federal law enforcement officers, disclosing weapons and

munitions information of federal law enforcement would be

dangerous.

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 Paragraph 15

At paragraph 15 the defendant seeks rough notes and police

reports from “any law enforcement agencies that worked“ with the

federal law enforcement in attempts to apprehend the Browns.

These requests are vague, overly broad, and exceed any

requirements of disclosure. He has not identified legally, or

factually, any theory under which he would be entitled to that

which he seeks. The government incorporates by reference its

objections in prior and subsequent paragraphs, to the extent

they are applicable here.

Paragraph 16

At paragraph 16 the defendant seeks information concerning

payments to local or state law enforcement agencies relating to

the apprehension efforts of the Browns. This request is vague,

overly broad, and exceeds any requirements of disclosure. The

defendant has not identified legally, or factually, any theory

under which he would be entitled to that which he seeks. The

government incorporates by reference its objections in prior and

subsequent paragraphs to the extent they are applicable.

Additionally, and without implying that there will be, if any

government witness at trial works for a local or state agency

that received any reimbursement from the USMS for services

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rendered, such will be disclosed as potential impeachment

material.

Paragraph 18

At paragraph 18 the defendant seeks video from a camera

which had been located near the intersection of the Brown

driveway and Center of Town Road. To the limited extent that

such video exists, it has already been recently disclosed. The

government is in the process of retrieving the hard drive from

that camera so that it can be examined to determine if there is

any additional video contained therein. If so, it too will be

disclosed.2 This request is moot.

Local Rule regarding Discovery Motions

United States District Court for the District of New

Hampshire, Local Rule 16.3, Motions Seeking Routine Discovery,

states “[n]o motion seeking discovery covered by LCrR 16.1 shall

be filed unless the opposing party has failed to comply with a

written request for the discovery sought by the motion.”

Conclusion

Whereas the defendant has failed to identify any discovery

2
Due to technical problems the camera at issue was used
more as a transmitter than as a recording device. A live feed
was sent from the camera to a remote location where the live
feed was at times monitored, but often times not recorded.

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material to which he is entitled that has not already been

disclosed, and whereas the government has complied, and will

continue to comply, with all of its discovery obligations and

will produce handwritten notes, and whereas the defendant has

failed to comply with Local Rule 16.3, the government

respectfully requests that the Court deny the defendant’s Motion

for Discovery.

February 12, 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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