UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

v. Cr. No. 07-189-01/02/03-GZS

DANIEL RILEY,
JASON GERHARD, and
CIRINO GONZALEZ

GOVERNMENT'S PROPOSED JURY INSTRUCTIONS

The government submits the following jury instructions

pursuant to Rule 30 of the Federal Rules of Criminal Procedure.

The government respectfully requests permission to propose

additional instructions that may be required by evidence that is

admitting during the trial of this case.

Respectfully submitted,

THOMAS P. COLANTUONO
United States Attorney

By: /s/ Arnold H. Huftalen

Arnold H. Huftalen
Assistant U.S. Attorney
NH Bar No. 1215
53 Pleasant St., 4th Floor
Concord, New Hampshire 03301
(603) 225-1552

Dated: March 19, 2008

 Agency

As a general rule, whatever any person is legally capable of

doing himself, he can do through another person as his agent. So,

if the acts or conduct of an agent, employee or other associate are

willfully ordered or directed, or willfully authorized or consented

to by the defendant, then the law holds the defendant responsible

for such acts or conduct, as if he had performed them himself.1

1
1 Devitt & Blackmar, Federal Jury Practice and
Instructions, §512.07, at 333 (3d ed 1977).

Page 2 of 23
 COUNT ONE

A. Indictment

The first count of the Indictment alleges:

From in or around January 2007, through in or around

September 2007, in the District of New Hampshire and

elsewhere, the defendants,

DANIEL RILEY,
JASON GERHARD, and
CIRINO GONZALEZ,

knowingly conspired and agreed with other individuals,

both known and unknown to the grand jury, to prevent by

force, intimidation and threat employees of the United

States Marshals Service, who are officers of the United

States, in the discharge of their official duties, to

wit: arresting Edward Brown and Elaine Brown.

The Indictment also alleges that the following 27 overt acts

were committed in furtherance of the conspiracy:

1. On different occasions between in or around May

2007, and in or around September 2007, Riley, who is a
resident of Cohoes, New York, temporarily resided in the
Browns’ home;

2. On different occasions between in or around May

2007, and in or around September 2007, Gerhard, who is a
resident of Brookhaven, New York, temporarily resided in
the Browns’ home;

3. On different occasions between in or around May

2007 and in or around September 2007, Gonzalez, who is a
resident of Alice, Texas, temporarily resided in the
Browns’ home;

Page 3 of 23
 4. On different occasions between in or around May
2007, and in or around September 2007, [Robert] Wolffe,
who is a resident of Randolph, Vermont, temporarily
resided at the Browns’ property;

5. On different occasions between in or around May

2007 through in or around September 2007, Riley publicly
declared his intention to forcibly resist any effort by
the United States Marshals Service to arrest Edward Brown
and Elaine Brown;

6. On different occasions between in or around May

2007 and in or around September, 2007, Gerhard publicly
declared his intention to forcibly resist any effort by
the United States Marshals Service to arrest Edward Brown
and Elaine Brown;

7. On different occasions between in or around May

2007 through in and around September 2007, Gonzalez
publicly declared his intention to forcibly resist any
effort by the United States Marshals Service to arrest
Edward Brown and Elaine Brown;

8. On or about January 21, 2007, Gerhard accepted

delivery of a Bushmaster rifle from a firearms dealer in
Alstead, New Hampshire;

9. On or about April 2, 2007, Gerhard purchased an

M44 rifle from a firearms dealer in Newport, New
Hampshire;

10. On or about May 23, 2007, Riley purchased a

high-powered Serbu .50 rifle from the firearms dealer in
Newport, New Hampshire.

11. On or about May 23, 2007, Gonzalez purchased a

high-powered Serbu .50 rifle from the firearms dealer in
Newport, New Hampshire;

12. In or around June 2007, Riley delivered a

number of fire extinguishers to the Browns home because
Edward Brown said that he (Edward Brown) believed that
federal law enforcement officers would set fire to the
Browns’ home;

13. In or around June 2007, Riley brought a shot

gun into the Brown’s home;

Page 4 of 23
 14. In or around June 2007, Riley installed motion
detector lights on the Browns’ property;

15. In or around June 2007, Gerhard attempted to

cause firearms accessories he purchased from a firearms
dealer in Maryland to be delivered to the Browns’ home;

16. At a date uncertain but between in or around

May 2007 and in or around September 2007, Gonzalez and
Gerhard and another person posed for a photograph with
Edward Brown. The photograph was posted to an account on
a social networking internet site, myspace.com, that was
registered to Gerhard. The internet account was used to
make statements in support of Edward Brown and Elaine
Brown. In the photograph, Gonzalez and Gerhard possess
rifles;

17. On or about July 20, 2007, Gerhard purchased

two (2) Ruger rifles from the firearms dealer in Alstead,
New Hampshire;

18. On or about July 25, 2007, Gerhard purchased a

high-powered Serbu .50 rifle from the firearms dealer in
Alstead, New Hampshire;

19. On or about July 31, 2007, Gerhard purchased

another Ruger rifle from the firearms dealer in Alstead,
New Hampshire;

20. Between in or around January 2007 through in or

around September 2007, Wolffe provided a 1992 Chevrolet
Caprice to the Browns which was used by other supporters
of the Browns to run errands and gather supplies for the
Browns;

21. On various dates between in or around January

2007 through in or around September 2007, Wolffe
conducted counter-surveillance of Deputy U.S. Marshals;

22. On various dates between in or around January

2007 through in or around September 2007, Wolffe provided
armed security for the Browns;

23. In or about August and September 2007, Wolffe

made his residence available as a point of trans-shipment
for supplies for delivery to the Browns;

Page 5 of 23
 24. On or about May 23, 2007 Riley purchased a
quantity of Tannerite, a binary explosive compound, which
he and others known to the Grand Jury later used and
mixed to create improvised explosive devices, which were
destructive devices, at the residence of Edward and
Elaine Brown in Plainfield, NH;

25. At dates uncertain, but from in or around

January 2007 through in or around September 2007, while
at the Brown residence, Riley, with others known to the
Grand Jury, assembled booby trap devices made from pipe,
pipe couplings, end caps, springs, firing pins and cotter
pins, which were destructive devices;

26. At dates uncertain, but from in or around

January 2007 through in or around September 2007, a co-
conspirator known to the Grand Jury assembled improvised
explosive devices while at the Brown residence using cans
of gun powder and fuses, which were destructive devices;
and

27. At dates uncertain, but from in or around

January 2007 through in or around September 2007, a co-
conspirator known to the Grand Jury assembled improvised
explosive devices known as pipe bombs using gun powder,
pipe, pipe end caps and fuses, which were destructive
devices.

Page 6 of 23
 B. Elements of 18 U.S.C. §372

In order for you to find a defendant guilty of the offense

that is charged in Count One you must unanimously agree that the

government has proven the following five elements beyond a

reasonable doubt:

First, that the defendant and at least one other

person entered into an agreement to use force, or to

intimidate or threaten employees of the United States

Marshals Service;

Second, the defendant knowingly joined the

agreement,

Third, the defendant acted with an intent to prevent

employees of the United States Marshals Service in the

discharge of their official duties;

Fourth, the defendant or another person who

participated in the conspiracy performed at least one of

the overt acts that are identified in the Indictment in

furtherance of the agreement, and

Fifth, the employees of the United States Marshals

Service are officers of the United States.2

2
18 U.S.C. §372.

Page 7 of 23
 COUNT TWO

A. Indictment

Count Two of the Indictment alleges:

From in or around January 2007, through in or around

September 2007, in the District of New Hampshire and

elsewhere, the defendants,

Daniel Riley,
Jason Gerhard, and
Cirino Gonzalez,

knowingly and willfully conspired and agreed with each

other and other individuals, both known and unknown to

the grand jury, to commit the following offenses against

the United States:

a. forcibly to assault, resist, oppose,

impede, intimidate and interfere with federal

law enforcement officers in the discharge of

their duties, to wit: attempting to arrest

Edward Brown and Elaine Brown, in violation of

Title 18, United States Code, Section

111(a)(1); or

b. knowing that offenses against the

United States had been committed by Edward

Brown and Elaine Brown, received, relieved,

comforted and assisted Edward Brown and Elaine

Brown in order to hinder and prevent their

Page 8 of 23
 apprehension, trial and punishment, in

violation of Title 18, United States Code,

Section 3; and that one of the conspirators

committed at least one of the overt acts that

are identified in the Indictment;

All in violation of Title 18, United States Code,

Sections 371, 111(a)(1) and 3.

Page 9 of 23
 B. Elements of 18 U.S.C. §371

In order for you to find a defendant guilty of the offense

that is charged in Count Two you must unanimously agree that the

government has proven the following four elements beyond a

reasonable doubt:

First, that the defendant and at least one other

person entered into an agreement to (a) assault, resist,

or impede officers of the United States in the discharge

of their duties, or (b) receive, relieve, comfort and

assist Edward Brown and Elaine Brown in order to hinder

and prevent their apprehension, trial and punishment,

Second, the defendant knowingly joined the

agreement,

Third, the defendant acted with intent to further

its unlawful purpose, and

Fourth, the defendant or another person who

participated in the conspiracy performed at least one of

the overt acts that is identified in the Indictment.3

3
First Circuit Pattern Jury Instruction, Criminal Cases,
Instruction No. 4.03 (1998 Ed.)

Page 10 of 23
 COUNT THREE

A. Indictment

Count Three of the Indictment alleges:

From in or around January 2007, through in or around

September 2007, in the District of New Hampshire and

elsewhere, the defendants,

Daniel Riley,
Jason Gerhard, and
Cirino Gonzalez,

knowing that offenses against the United States had been

committed by Edward Brown and Elaine Brown, received,

relieved, comforted and assisted Edward Brown and Elaine

Brown in order to hinder and prevent their apprehension,

trial and punishment;

All in violation of Title 18, United States Code,

Section 3.

Page 11 of 23
 B. Elements of 18 U.S.C. §3

In order for you to find a defendant guilty of the offense

that is charged in Count Three you must unanimously agree that the

government has proven the following three elements beyond a

reasonable doubt:

First, that the Browns committed a felony,

Second, the defendant knew the Browns committed the

felony, and

Third, the defendant received, relieved, comforted

or assisted the Browns in order to hinder or prevent the

Brown’s apprehension, trial or punishment.4

4
United States v. Neal, 102 F.2d 643, 645-646 (8th Cir. 1939)

Page 12 of 23
 COUNTS FOUR, FIVE AND SIX

A. Indictment (Firearms)

Count Four of the Indictment alleges that defendant Gerhard

carried or used a firearm and a destructive device in connection

with a crime of violence, or that he possessed a firearm in

furtherance of a crime of violence. Defendants Gonzales and Riley

are charged with the same offense in Counts Five and Six,

respectively. In this regard, the Indictment alleges:

From in or around January 2007, through in or around

September 2007, in the District of New Hampshire and

elsewhere, the defendant,

Daniel Riley,
Jason Gerhard, and
Cirino Gonzalez

knowingly and intentionally: (a) carried or used one or

more of the firearms that are identified in the

indictment during and in relation to crimes of violence

for which the defendant could be prosecuted in a court of

the United States, to wit: 1) conspiracy to forcibly

assault, resist, oppose, impede, intimidate and interfere

with federal law enforcement in the official discharge of

their duties, attempting to arrest Edward Brown and

Elaine Brown, in violation of Title 18, United States

Code, Sections 371 and 111(a)(1), or 2) conspiracy to

prevent Officers of the United States from discharging

Page 13 of 23
their duties, in violation of Title 18, United States

Code, Section 372; or (b) in furtherance of such crime of

violence, possessed one or more firearms;

All in violation of Title 18, United States Code,

Sections, 924(c)(1)(A) and B.

Page 14 of 23
 B. Elements - 18 U.S.C. §924(c)(1)(A)(I)

In order for you to find defendants Riley, Gerhard and/or

Gonzalez guilty of carrying or using a firearm in connection with

a crime of violence, or possessing a firearm in furtherance of a

crime of violence, as charged in Counts Four, Five and Six,

respectively, you must unanimously agree that the government has

proven the following three elements beyond a reasonable doubt:

First, the defendant (a) conspired to prevent

officers of the United States from discharging their

duties, as charged in Count One, or (b) conspired to

interfere with Federal Law Enforcement Officers in the

discharge of their duties, as alleged in Count Two,

Second, the defendant knowingly used or carried a

firearm in connection with one of those crimes of

violence, or that the defendant possessed a firearm in

furtherance of one of those crimes, and

Third, the defendant’s use of the firearm played at

least an indirect role in the crime of violence.5

5
United States v. Streit, 962 F.2d 894, 899 (9th Cir.
1992)(prosecution under 18 U.S.C. §924(c)(1)(A) (using or
carrying a firearm during and relation to a committing a
violation of 18 U.S.C. §111(a)(1)); United States v. Abreu, 952
F.2d 1458, 1466 (1st Cir. 1992)(prosecution under 18 U.S.C.
§924(c)(1)(A) supported by evidence that firearms were found in
an apartment the defendant rented and used for drug trafficking
activities).

Page 15 of 23
 C. “Firearm”

The term “firearm” means any weapon which will or is designed

to or may readily be converted to expel a projectile by the action

of an explosive.6

D. “Possess”

The law recognizes two kinds of possession, “actual

possession” and “constructive possession.” A person who knowingly

has direct physical control over an item at a given time, actually

possesses the item. A person who, although not in actual

possession, knowingly has both the power and the intention at a

given time to exercise dominion or control over an item, or to

exercise dominion or control over the area in which the item is

found, whether directly or through another person, constructively

possesses the item.7

6
18 U.S.C. §921(a)(3).
7
United States v. Rogers, 41 F.3d 25, 30 (1st Cir.
1994)(approving this definition of “possession” in a case
involving a defendant’s illegal possession of a firearm). See
also Sand, Modern Federal Jury Instructions, No. 40-8.

Page 16 of 23
 E. Crime of Violence

A “crime of violence” means an offense that is a felony and

has as an element the use, attempted use or threatened use of

physical force against the person or property of another, or that

by its nature involves a substantial risk that physical force

against the person or property of another may be used in the course

of committing the offense.8

F. Aiding and Abetting

You may find a defendant guilty of the firearms offenses that

are charged in Counts Four, Five and Six if you determine that

Gerhard, Gonzalez and/or Riley aided and abetted the commission of

the offenses.

A person aids and abets the commission of a crime when they

intentionally help someone else commit the crime. To establish

that a defendant aided and abetted the commission of an offense,

the government must prove beyond a reasonable doubt that (1)

someone other than the defendant committed the charged crime, and

(2) the defendant willfully associated himself in some way with the

crime and participated in the crime as he would in something he

wished to bring about.

8
18 U.S.C. §924(c)(3)

Page 17 of 23
 In other words, the government must prove that a defendant

consciously shared the other person's knowledge of the underlying

criminal act and intended to help that person commit the offense.

The defendant need not perform the underlying criminal act, be

present when it is performed, or be aware of the details of its

execution to be guilty of aiding and abetting. On the other hand,

a general suspicion that an unlawful act may occur or that

something criminal is happening is not enough. Mere presence at

the scene of a crime and knowledge that a crime is being committed

are also not sufficient to establish aiding and abetting.

G. Pinkerton Liability

You may also find a defendant guilty of the firearm offenses

that are charged in Counts Four, Five and Six if you unanimously

agree that the defendant could have reasonably foreseen, but not

actually known, that another conspirator used or carried a firearm

during or in relation to a crime of violence, or that the

conspirator possessed a firearm in furtherance of a crime of

violence.9

9
United States v. Shea, 150 F.23d 44, 49 (1st Cir. 1998)
(approving virtually identical instruction in cases involving the
use of a firearm in connection with an attempted bank robbery).

Page 18 of 23
 COUNT FOUR AND SIX

A. Indictment (Destructive Devices)

Count Four of the Indictment alleges that defendant Gerhard

carried or used a destructive device in connection with a crime of

violence, or that he possessed a destructive in furtherance of a

crime of violence. Defendant Riley is charged with the same

offense in Count Six. In this regard, the Indictment alleges:

From in or around January 2007, through in or around

September 2007, in the District of New Hampshire and

elsewhere, the defendants,

Jason Gerhard, and

Daniel Riley,

knowingly and intentionally: (a) carried or used one or

more of the destructive devices identified in the

indictment during and in relation to crimes of violence

for which he could be prosecuted in a court of the United

States, to wit: 1) conspiracy to forcibly assault,

resist, oppose, impede, intimidate and interfere with

federal law enforcement in the official discharge of

their duties, attempting to arrest Edward Brown and

Elaine Brown, in violation of Title 18, United States

Code, Sections 371 and 111(a)(1), or 2) conspiracy to

prevent Officers of the United States from discharging

their duties, in violation of Title 18, United States

Code, Section 372; or (b) in furtherance of such crime of

Page 19 of 23
 violence, possessed one or more firearms, including

destructive devices;

All in violation of Title 18, United States Code, Sections,

924(c)(1)(A) and 924(c)(1)(B)(ii).

Page 20 of 23
 B. Elements of 18 U.S.C. §924(c)(1)(A)

In order for you to find defendants Riley and/or Gerhard

guilty of carrying or using a destructive device in connection with

a crime of violence, or that they possessed a destructive device in

furtherance of a crime of violence, as charged in Counts Four and

Six, respectively, you must unanimously agree that the government

has proven the following three elements beyond a reasonable doubt:

First, that the defendant (a) conspired to prevent

officers of the United States from discharging their

duties, as charged in Count One, or (b) conspired to

interfere with Federal Law Enforcement Officers in the

discharge of their duties, as alleged in Count Two,

Second, the defendant knowingly used or carried a

destructive device in connection with one of those crimes

of violence, or that the defendant possessed a

destructive device in furtherance of one of those crimes,

and

Third, that the use of the destructive device played

at least an indirect role in the crime of violence.

C. “Destructive Device”

The term “destructive device” means any explosive, incendiary

bomb, grenade, bomb or similar device, and any type of weapon by

whatever name known which will, or which may be readily converted

Page 21 of 23
to, expel a projectile by the action of an explosive or other

propellant, and which has any barrel with a bore of more than one-

half inch in diameter. “Destructive device” also includes any

combination of parts either designed or intended from which a

destructive device may be assembled.10

D. Crime of Violence

A “crime of violence” means an offense that is a felony and

has as an element the use, attempted use or threatened use of

physical force against the person or property of another, or that

by its nature involves a substantial risk that physical force

against the person or property of another may be used in the course

of committing the offense.11

E. “Possess”

As I stated, the law recognizes two kinds of possession,

“actual possession” and “constructive possession.” A person who

knowingly has direct physical control over an item at a given time,

actually possesses the item. A person who, although not in actual

possession, knowingly has both the power and the intention at a

given time to exercise dominion or control over an item, or to

exercise dominion or control over the area in which the item is

10
18 U.S.C. 921(a)(4)
11
18 U.S.C. §924(c)(3)

Page 22 of 23
found, whether directly or through another person, constructively

possesses the item.12

F. Aiding and Abetting

You may find defendants Riley and/or Gerhard guilty of the

destructive device offenses that are charged in Counts Four and

Six, respectively, if you determine that Gerhard and Riley aided

and abetted the commission of the offenses.

G. Pinkerton Liability

You may find defendant Riley and/or defendant Gerhard guilty

of the destructive device offense that are charged in Counts Four

and Six, respectively, if you unanimously agree that defendant

Gerhard and/or Riley could have reasonably foreseen, but not

actually known, that another conspirator carried or used a

destructive device during or in relation to a crime of violence, or

that the conspirator possessed a destructive device in furtherance

of a crime of violence.13

12
United States v. Rogers, 41 F.3d 25, 30 (1st Cir.
1994)(approving this definition of “possession” in a case
involving a defendant’s illegal possession of a firearm). See
also Sand, Modern Federal Jury Instructions, No. 40-8.
13
Shea, 150 F.23d at 49.

Page 23 of 23