UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA )

)

v. )

 )

 ) Crim. No. 06-00071-ALL-SM

ELAINE A BROWN, and )

EDWARD LEWIS BROWN, )

 )

Defendants. )

GOVERNMENT’S SENTENCING MEMORANDUM

The United States of America submits this Sentencing

Memorandum to address certain issues that may arise at the

sentencing hearings of defendants Elaine A. Brown and Edward

Lewis Brown and to apprise the Court of the recommendations that

the government expects to make at the those hearings. The

sentencing hearings are scheduled for Tuesday, April 24, 2007.

I. BACKGROUND

In a single indictment handed down on April 5, 2006, the

defendants were charged with a number of income tax and

structuring related offenses. The indictment charged both

defendants with one count of conspiracy to defraud the federal

government (Count One) and one count of conspiracy to structure

financial transactions to avoid the currency transaction

reporting requirements (Count Fifteen). The indictment further

charged defendant Elaine Brown with five counts of evading

federal income taxes (Counts Two through Six), eight counts of

failing to collect federal payroll taxes from the wages of her

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 1 of 22
dental office workers (Counts Seven through Fourteen) and two

substantive counts of structuring (Counts Sixteen and Seventeen). 

Defendant Edward Brown was charged with one substantive count of

structuring (Count Seventeen). Finally, the indictment contained

a notice that the government was seeking the forfeiture of

approximately $215,000 in cash and property involved in the

alleged structuring offenses, including the defendants’ residence

in Plainfield, New Hampshire, and a professional building owned

by the defendants in West Lebanon, New Hampshire. 

On January 18, 2007, after approximately four days of

hearing evidence from both the government and the defense, a jury

returned verdicts in favor of the government on all counts. With

respect to the forfeiture provisions in the indictment, the jury

returned a special verdict finding that (i) the total amount of

the funds involved in the structuring offenses was $215,890.47;

and (ii) of that amount, $27,997.13 and $42,840.16 involved the

defendants’ professional building and their residence,

respectively.

II. THE PRESENTENCE INVESTIGATION REPORTS

The probation officer has completed final reports of

presentence investigation for each of the defendants. Using a

total intended loss of more than $400,000 but not more than

$1,000,000 (as established at trial) for the tax offenses, making

appropriate adjustments for obstruction of justice on the part of

each of the defendants and applying the grouping rules to account

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 2 of 22
1 In a joint pleading dated April 2, 2007, the defendants 

asserted that, based upon “[w]hat little [they had] read” in a

“few pages” of one of their reports, they had concluded that the

reports were“so filled with misrepresentations, untruths, and

presumptions, that, even if [they] cared to respond to all these

items, [they] would not know where to begin.” From the

defendants’ joint pleading it is impossible to determine which

defendant’s report the few pages they read came from. The

defendants have not otherwise responded to the presentence

reports.

for the structuring offenses, the probation officer properly

determined that the Total Offense Level for each of the

defendants is twenty-four. Each of the defendants qualifies as

Criminal History Category I and thus the reports properly find

that the corresponding advisory Sentencing Guideline Range for

each defendant is fifty-one to sixty-three months.

Although the defendants generally labeled the initial

version of at least one of the presentence reports as inaccurate,

they have not specifically objected to any of the reports’ facts,

legal conclusions or sentencing guideline calculations. 1 For

its part, the government has no objection to any of the facts,

legal conclusions or sentencing guideline calculations in either

final report, as supplemented by the government’s April 13, 2007,

letters attached thereto. The facts on which the government will

rely in seeking the sentences it recommends are in large part the

facts set forth in the effectively undisputed presentence 

reports.

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III. UPWARD DEPARTURES AND UPWARD VARIANCES FROM THE SENTENCING

GUIDELINE RANGE

A. Upward Departures

Upward departures are warranted on the ground that the

defendants’ conduct resulted in a significant disruption of

governmental functions and on the ground that the defendants

engaged in further criminal activities while fugitives from

justice in this case.

1. Disruption of Governmental Function

Under the Sentencing Guidelines, substantially disrupting 

a governmental function is a favored ground for an upward

departure. See U.S.S.G, § 5K2.7. Section 5K2.7 of the Sentencing

Guidelines provides that, “[i]f the defendant's conduct resulted

in a significant disruption of a governmental function, the court

may increase the sentence above the authorized guideline range to

reflect the nature and extent of the disruption and the

importance of the governmental function affected.” Id.

As noted in the reports of presentence investigation, the

defendants failed to show up on the fourth day of trial and,

although Elaine eventually returned to see her trial through,

they now have both retreated to their Plainfield residence. They

refuse to submit to the authority of the Court and repeatedly

threaten that they will resist with deadly force any effort by

the government to remove and apprehend them. Not only does 

their conduct constitute a flagrant violation of their respective

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 4 of 22
conditions of release, but their actions have resulted in the

significant disruption of a governmental function warranting an

upward departure under Section 5K2.7. 

The defendants’ unannounced failure to appear for their

fourth day of trial resulted in a substantial waste of trial

resources and significantly inconvenienced a large number of

civilian trial participants. Dozens of jurors and witnesses

rearranged their schedules, took time off from any family or work

responsibilities and traveled to Concord that day to execute

their respective civic duties. The trial was continued due to

the defendants’ absence, and, unfortunately, that day not one of

the witnesses had an opportunity to testify and the jury received

absolutely no evidence. Accordingly, all of the sacrifices the

witnesses and jurors made to be at trial were rendered totally

unnecessary by the defendants’ failures to appear.

In addition, by retreating to their residence and repeatedly

threatening violence against any lawful attempts to apprehend

them, the defendants have put the government in a position where

it has needed to develop special plans to take the defendants

into custody and to develop and implement heightened security

measures. Such measures have required significant expenditures

of government resources. Finally, the defendants filed a

frivolous lawsuit against the prosecutors and agents who directed

the investigation of this case, creating personal and

professional inconveniences for those officials and temporarily

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2 An upward departure would not present an issue of impermissible

double-counting. The obstruction of justice enhancement under

Section 3C1.1 of the Guidelines – which was already applied in

determining the defendants’ pre-departure offense levels – would

apply regardless of whether there was in fact a disruption of the

any governmental function. Accordingly, this departure is based

upon facts not already taken into consideration in determining the

total offense level. Cf. United States v. Moreno,367 F.3d 1, 3-

5(1st Cir. 2004)(noting that the grounds for departure under §

5K2.7 were already accounted for in offense level for defendant's

bail jumping). 

3 Other possible post flight offenses on which this type of upward

departure against the defendants could be based include

threatening wire communications, accessory after the fact and

conspiracy.

diverting their attention from their substantive work. 

Based upon all of the above, the government submits that

there are both legal and factual bases for upward departures as

to each of the defendants on the basis that they substantially

disrupted a government function. 2

2. Engaging in Further Criminal Activities while

Fugitives

Engaging in further uncharged criminal activity while a

fugitive from justice is grounds for a further upward departure

from the otherwise applicable guideline sentencing range. See,

e.g., United States v. Sarna, 28 F.3d 657, 66-63 (7th Cir. 

1994). Defendants Elaine Brown and Edward Brown each engaged in

criminal conduct since assuming fugitive status. For example,

they both participated in inflicting $1000 or more in damages to

government property when they removed and rendered irreparably

inoperable defendant Elaine Brown’s ankle bracelet. 3 There is

therefore both a legal and factual basis for an upward departure

in the defendants offense levels for continuing to engage in

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 6 of 22
criminal activity while on fugitive status. 

B. Upward Variances

Based upon multiple aggravating factors, the Court may vary

upwards significantly from the sentences called for by the

advisory Sentencing Guideline Ranges. Such upward variances

would be consistent with United States v. Booker, 453 U.S. 220

(2005) and 18 U.S.C. § 3553(a). Under Booker, the Court may vary

from the guidelines in imposing a sentence after consideration of

the following sentencing factors:

(1) the nature and circumstances of the offense and the

history and the characteristics of the defendant [18

U.S.C. § 3553(a)(1)];

(2) the need for the sentence imposed -

(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just

punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational

or vocational training, medical care, or other

correctional treatment in the most effective

manner [18 U.S.C. § 3553(a)(2)];

(3) the kinds of sentences available [18 U.S.C. §

3553(a)(3)];

(4) the guidelines and policy statements issued by the

Sentencing Commission, including the advisory guideline

range [18 U.S.C. § 3553(a)(4) & (a)(5)];

(5) the need to avoid unwarranted sentencing disparity

among defendants with similar records that have been

found guilty of similar conduct [18 U.S.C. §

3553(a)(6)]; and

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 7 of 22
(6) the need to provide restitution to any victims of the

offense(s) [18 U.S.C. § 3553(a)(7)].

Id. 

The First Circuit has held that, although the guidelines

should not be characterized as presumptively reasonable or

presumptively controlling, they remain – even post-Booker – an

important consideration at sentencing. United States v. JiminezBeltre, 440 F.3d 514, 518 (1st Cir. 2006). Indeed, they cannot

be considered “just another statutory factor,” because the

guidelines are the only integration of the multiple factors and

were generally based upon the actual experiences of sentencing

experts. Id. The First Circuit has adopted a procedure of first

calculating the guideline sentencing range and then evaluating

whether there any other factors that require a sentence above or

below the range to satisfy a reasonableness standard. JiminezBeltre, 440 F.3d 518-19. .

In this case, an upward variance from the Sentencing

Guideline Range for each defendant is warranted based upon the

defendants’ history and characteristics, the nature and 

circumstances of the offenses and, particularly, the need for the

sentence to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense. Those aggravating factors are sufficiently compelling

in this case that it would be unreasonable to impose a sentence

that does not reflect some upward adjustment to account for the

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 8 of 22
4 The government offers this information mainly as

rebuttal to the character evidence defendant Elaine

Brown adduced at trial and the two character letters

the Court has received during the sentencing process. 

their presence. The aggravating circumstances demonstrating the

need for upward variances for each of the defendants are as

follows:

1. Defendant Elaine Brown

a. History and Characteristics of the Defendant

• Defendant Elaine Brown is a highly educated and

successful businesswoman, who likely knew better than

most in similar circumstances that her claimed tax

views were wrong. [Presentence Report, ¶¶ 9, and 103-

05.] 

• Defendant Elaine Brown forced to court to receive

unemployment benefits a receptionist who could not

continue to work for her after the former employer’s

husband accidentally killed himself trying to replicate

a gun trick he learned about at paramilitary training

for which he was recruited, and which was sponsored by,

defendant Edward Brown. Government’s April 13 letter. 4

b. Nature and Circumstances of the Offense

• Defendants Elaine Brown and Edward Brown began to

engage in the offenses of conviction after the Internal

Revenue Service levied their bank account to satisfy a

past tax debt on which they had failed to stay current. 

[Presentence Report, ¶ 10.]

• Defendant Elaine Brown ignored the advice of both the

Internal Revenue Service and multiple tax professionals

that she should not act on the highly unconventional

views of the tax laws that she claimed to hold. 

[Presentence Report, ¶¶ 11-13,and 15.]

• The total tax loss used in the Sentencing Guideline

calculation likely understates in a material way the

amount of intended tax loss, as it does not include any

tax loss associated with defendant Elaine Brown’s

failures to: 

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 9 of 22
• file tax returns or collect payroll taxes in 2004 

and 2005, the amounts of which could be reasonably

estimated by extrapolation [Presentence Report, ¶¶

17, 18 and 32]; or

• pay State of New Hampshire business taxes, which

the presentence report suggests amount to several

hundred thousand dollars. [Presentence Report, ¶

84.]

• The loss amount used in the presentence report is also

likely understated because it does not include any

interest, fines or penalties that might have been

imposed against employees whose payroll taxes defendant

Elaine Brown did not collect and whose wages defendant

Elaine Brown did not report to the Internal Revenue

Service. [Presentence Report, ¶ 33].

• Defendant Elaine Brown put the employees from whom she

did not collect payroll taxes or report income at

significant risk of adverse legal and financial

consequences in the form of Internal Revenue Service

fines, penalties, interest and legal action. 

[Presentence Report, ¶ 19.]

c. Need for Sentence to Reflect the Seriousness

of the Offenses, to Promote Respect for the

Law, and to Provide Just Punishment for the

Offenses

• Due to the structure of the loss table, the tax loss

associated with defendant Elaine Brown’s failure to

collect payroll taxes did not affect the guideline

calculation, and therefore, unless that loss is taken

into account in some other way during the sentencing

process, defendant Elaine Brown will not be punished

for that separate and independent offense. 

[Presentence Report, ¶ 33.]

• Until pushed to the brink of losing their home and

business properties, defendants Elaine Brown and Edward

Brown also stopped paying the school portions of their

local property taxes in both Plainfield and West

Lebanon based upon their claim that the schools were

teaching subjects that, according to the Browns, the

state constitution precluded publicly funded schools

from teaching. [Presentence Report, ¶ 85.]

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 10 of 22
 • Defendants Elaine Brown and Edward Brown intentionally

and routinely disregarded other laws such as those

requiring firearm licensing, building permits and dog

licenses, illegal acts about which defendant Edward

Brown publicly boasted. [Presentence Report, ¶ 86.]

 • During the investigation that led to this prosecution, 

defendants Elaine Brown and Edward Brown filed a

meritless lawsuit against the undersigned Assistant

U.S. Attorney, the United States Attorney for the

District of New Hampshire and the two law enforcement

agents leading the investigation. [Presentence Report,

Government’s supplemental letter, dated April 13,

2007.]

 • Defendant Elaine Brown engaged in multiple acts of

obstruction of justice, including but not limited to

willfully and knowingly failing to appear during the

middle of trial and testifying falsely at trial. (In

her trial testimony, defendant Elaine Brown denied one

of the essential elements of the charged offenses –

willfulness. The jury’s guilty verdicts of guilty on

the offenses on the counts requiring that element the

must have made the implicit but necessary finding,

beyond a reasonable doubt, that defendant Elaine Brown

testified falsely.) [Presentence Report, ¶¶ 27 and 28.]

• In multiple public statements, defendant Elaine Brown 

affirmatively disclaimed responsibility for her crimes,

instead blaming her convictions on, among others, the

Court, the jury, the prosecution and the Internal

Revenue Service and she continues to maintain that she

has broken no laws. [Presentence Report ¶¶ 29 and 31;

Government’s supplemental letter, dated April 13, 2007,

and defendants Elaine Brown’s and Edward Brown’s joint

response to presentence report dated April 3, 2007.]

• In connection with her request for post-conviction

release, defendant Elaine Brown advised this Court that

her son – who she had proposed as a potential third

party custodian – did not share her claimed beliefs

about the tax laws when in fact he apparently posted on

an internet bulletin board a message proclaiming her

views as correct and urging others to follow her and

defendant Edward Brown’s example. [Presentence Report,

Government’s supplemental letter, dated April 13,

2007.]

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 11 of 22
• Defendant Elaine Brown has flouted the conditions of

her post-conviction release, when, even after orally

representing to this Court that she would not do so,

she left the third party custody of her son and joined

defendant Edward Brown in Plainfield, New Hampshire. 

[Presentence Report ¶¶ 4 and 29; Government’s

supplemental letter, dated April 13, 2007, and

defendants Elaine Brown’s and Edward Brown’s joint

response to presentence report dated April 3, 2007.]

• Defendant Elaine Brown removed an electronic ankle

bracelet she was required to wear as a condition of her

post-conviction release and inflicted more than $1000

in damage to the ankle bracelet – government property –

by rendering it permanently inoperable. [Presentence

Report ¶ 29; Government’s supplemental letter, dated

April 13, 2007.]

• Since her conviction, defendant Elaine Brown has

publicly urged others to stop paying their taxes based

upon the same or similar theories of the tax laws she

raised without success at trial.

• Defendant Elaine Brown has participated in interviews

and other public statements in which she and defendant

Edward Brown have made express or implicit violent

threats against certain specific public officials and

others involved in their anticipated capture, requiring

the government to develop and implement, at substantial

expense to law abiding federal taxpayers, special

security plans and plans to apprehend defendants Elaine

Brown and Edward Brown. [Presentence Report; ¶ 30,

Government’s supplemental letter, dated April 13,

2007.]

• Despite the substantial tax losses attributable to her

offenses and her frequent claims that she is not a

citizen subject to the laws of the United States, 

defendant Elaine Brown has applied for:

• and, since her conviction has received, Social

Security benefits in the amount of more than $1300

per month [Presentence Report; ¶ 109.]; and

• reimbursement from the federal government under 

federal law of expenses she anticipated incurring

in this case.

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 12 of 22
2. Edward Lewis Brown

a. History and Characteristics of the Defendant

• Defendant Edward Brown displays a badge resembling the

shield of the U.S. Marshall on his belt and on his

personal vehicles but he is not a law enforcement

officer. [Presentence Report; ¶¶ 85,89 and 90.]

• Defendant Edward Brown has been quoted in newspapers

stating that he is going to kill as many government

officials as he can and that “there’s going to be a lot

of hanging of government officials.” [Presentence

Report, Government’s supplemental letter, dated April

13, 2007.]

• During a telephone conversation with a State of New

Hampshire Department of Revenue Administration employee

about defendant Elaine Brown’s state business tax

liaibilties, defendant Edward Brown asked the state

employee where he would be “when the bullets started to

fly.” [Presentence Report, Government’s supplemental

letter, dated April 13, 2007.]

b. Nature and Circumstances of the Offense

• Defendants Elaine and Edward Brown began to engage in

the offenses of conviction after the Internal Revenue

Service levied their bank account to satisfy a past tax

debt on which they had failed to stay current. 

[Presentence Report, ¶ 10.]

• Defendant Edward Brown ignored the advice of both the

Internal Revenue Service and multiple tax professional

who told her that she should not act on the highly

unconventional views of the tax laws she claimed to

hold. [Presentence Report, ¶¶ 11-13,and 15.]

• The total tax loss used in the Sentencing Guideline

calculation likely understates in a material way the

amount of intended tax loss, as it does not include any

tax loss associated with defendant Elaine Brown’s

failures to: 

• file tax returns or collect payroll taxes in 2004 

and 2005, the amounts of which could be reasonably

estimated by extrapolation [Presentence Report, ¶¶

17, 18 and 32]; or

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 13 of 22
• pay State of New Hampshire business taxes, which

the presentence report suggests amount to several

hundred thousand dollars. [Presentence Report, ¶

69].

• The loss amount used in the presentence report is also

likely understated because it does not include any

interest, fines or penalties that might have been

imposed against employees whose payroll taxes defendant

Elaine Brown did not collect and whose wages defendant

Elaine Brown did not report to the Internal Revenue

Service. [Presentence Report, ¶ 33.]

• Defendant Elaine Brown put the employees from whom she

did not collect payroll taxes or report income at

significant risk of adverse legal and financial

consequences in the form of Internal Revenue Service

fines, penalties, interest and legal action. 

[Presentence Report, ¶ 19.]

c. Need for Sentence to Reflect the Seriousness

of the Offenses, to Promote Respect for the

Law, and to Provide Just Punishment for the

Offenses

• Due to the structure of the loss table, the tax loss

associated with defendant Elaine Brown’s failure to

collect payroll taxes did not affect the guideline

calculation, and therefore, unless that loss is taken

into account in some other way during the sentencing

process, defendant Elaine Brown will not be punished

for that separate and independent offense. 

[Presentence Report, ¶ 33.]

• Defendant Edward Brown, even knowing he was the subject

of a criminal investigation, told law enforcement

authorities that he would not pay the federal income

tax. [Presentence Report, ¶ 24.]

• Until pushed to the brink of losing their home and

business properties, defendants Elaine Brown and Edward

Brown also stopped paying the school portions of their

local property taxes in both Plainfield and West

Lebanon based upon their claim that the schools were

teaching subjects that, according to the Browns, the

state constitution precluded publicly funded schools

from teaching. [Presentence Report, ¶ 70.]

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 14 of 22
 • Defendants Elaine Brown and Edward Brown intentionally

and routinely disregarded other laws such as those

requiring firearm licensing, building permits and dog

licenses, illegal acts about which defendant Edward

Brown has publicly boasted. [Presentence Report, ¶

71.]

 • During the investigation that led to this prosecution, 

defendants Elaine Brown and Edward Brown filed a

meritless lawsuit against the undersigned Assistant

U.S. Attorney, the United States Attorney for the

District of New Hampshire and the two law enforcement

agents leading the investigation. [Presentence Report,

Government’s supplemental letter, dated April 13,

2007.]

 • Defendant Edward Brown engaged in obstruction of

justice, including but not limited to willfully and

knowingly absenting himself from the proceedings by

retreating to his residence where he remains to this

day. [Presentence Report, ¶ 27.]

 • Defendant Edward Brown assisted and comforted defendant

Elaine brown when she joined him at their Plainfield

property in violation of her bail conditions. 

[Presentence Report, ¶ 27 and 29.]

• In multiple public statements, defendant Edward Brown 

affirmatively disclaimed responsibility for his

offenses, instead blaming his convictions on, among

others, the Court, the jury, the prosecution and the

Internal Revenue Service. [Presentence Report,

Government’s supplemental letter, dated April 13, 2007,

and defendants Elaine Brown’s and Edward Brown’s joint

response to presentence report dated April 3, 2007.]

 • Defendant Edward Brown assisted defendant Elaine Brown

in removing an electronic ankle bracelet she was

required to wear as a condition of her post-conviction

release and inflicted more than $1000 in damage to the

ankle bracelet – government property – by rendering it

permanently inoperable. [Presentence Report,

Government’s supplemental letter, dated April 13,

2007.]

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 15 of 22
• Since his conviction, defendant Edward Brown has

publicly urged others to stop paying their taxes based

upon the same or similar theories of the tax laws she

raised without success at trial. [Presentence Report,

¶ 30.]

• Defendant Edward Brown has made numerous public

statements in which he has made express or implicit

violent threats against certain specific public

officials and others he anticipates may try to

apprehend him, requiring the government to develop and

implement, at substantial expense to law abiding

federal taxpayers, special security plans and plans to

apprehend defendants Elaine Brown and Edward Brown. 

[Presentence Report, ¶ 30, Government’s supplemental

letter, dated April 13, 2007.]

• In declining to submit to a presentence interview,

Brown said that he neither recognizes nor respects the

federal court. [Presentence Report, ¶ 77.] 

• In November 2006, weeks before he argued at trial that

he was not subject to federal jurisdiction defendant

Edward brown wrote a letter to state tax authorities

that his domicile was a federal enclave, subject

exclusively to federal jurisdiction and that the state

thus had no jurisdiction to tax him [Presentence

Report, Government’s supplemental letter, dated April

13, 2007.]

• Defendant Edward Brown has been seen wearing a firearm

in violation of the conditions of his pre-trial release

[Presentence Report, ¶ 77.]

IV. FORFEITURE

The Court already has entered a preliminary order of

forfeiture with respect to the forfeited real properties in

Plainfield and West Lebanon. Rule 32.2(b)(3) of the Federal

Rules of Criminal Procedure provide that “at sentencing – or at

any time before sentencing if the defendant consents – the

preliminary order of forfeiture becomes final as to the defendant

and must be made a part of the sentence and included in the

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 16 of 22
5 At sentencing, the forfeiture order will become final only as to

the defendants and will remain preliminary as to third parties

until the conclusion of the ancillary proceedings. In this case,

one third party – the State of New Hampshire Department of Revenue

Administration – has filed an ancillary claim but the deadline for

filing claims will not expire until 30 days after the publication

period, which will be ongoing on the date of sentencing. The

government and the state Department of Revenue Administration

anticipate filing a stipulation of the relative priorities of

their interests in the forfeited properties by April 23, 2007, as

requested by the Court. 

judgment.” F.R. Cr. Pro. 32.2(b)(3). Accordingly, at sentencing

the government will request that the Court include a reference to

the forfeiture when it orally pronounces the defendants’

sentences and that the Court issue a written order of forfeiture

and attach or otherwise incorporate that written forfeiture order

into the judgment and commitment order of each defendant. The

government has secured a restraining order and filed lis pendens

to protect its forfeitable interests in the two real properties

subject to the forfeiture re. 5

V. OTHER SENTENCING ISSUES

A. The Court Has the Authority to Sentence the Defendants

In Abstentia

The Court clearly has authority to sentence the defendants

in abstentia. The right to be present for sentencing, although

important, is far from absolute and may be waived by, among other

things, the act of fleeing. See generally, Crosby v. United

States, 506 U.S. 255 (1993). Rule 43 of the Federal Rules of

Criminal Procedure provides that, in noncapital cases, a

defendant waives the right to be present for sentencing when he

is voluntarily absent during sentencing. F.R. Crim. Pro. 

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 17 of 22
6 Of course, if the pro se defendants in this case are voluntarily

absent from sentencing, as a practical matter there will be no

present to conduct an evidentiary hearing on their behalf.

43(c)(1)(B). The defendants know about their scheduled

sentencing hearings from, among other things, their presentence

reports. Unless there are significant, presently unknown,

circumstances that preclude them from attending their

sentencings, any absence will be entirely voluntarily and such

absences should not preclude the Court from going forward. See,

e.g, United States v. Long, 301 F.3d 1095 (9th Cir. 2002);

United States v. Lawrence, 248 F.3d 300 (4th Cir. 2001).

B. The Court May Limit the Types of Information the

Parties May Present at Sentencing and the Manner in

which Such Information Is Presented

Under the Sentencing Guidelines, the Court’s obligation to

provide the defendant with an “opportunity to present information

arises ... when a factor is reasonably in dispute.” U.S.S.G. §

6A1.3(a); see also United States v. Montenegro-Rojos, 908 F.2d

425 (9th Cir. 1990) . That limitation is particularly important in

this case because the defendants have not filed any meaningful

objections to the presentence report. Accordingly, there are

very few, if any, important sentencing factors reasonably in

dispute. In addition, to the extent the Court deems it

appropriate to allow the defendants to present information, the

Court may in its discretion decline to conduct an evidentiary

hearing and accept the information through alternative means such

as proffer, affidavits or written submission. 6

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 18 of 22
VI. SENTENCING RECOMMENDATIONS

The government expects to make the following sentencing

recommendations:

1. Elaine A. Brown

For the reasons set forth above, the government anticipates

recommending the following sentence with respect to defendant

Elaine Brown:

• two upward departures of one level each for disruption

of a governmental function and continuing criminal

conduct while a fugitive, resulting in an Offense Level

26 and a Guideline Sentencing Range of 63 to 78 months;

and

• a guideline sentence at the top of the Guideline

Sentencing Range, or 78 months, to reflect the fact

that the defendant did not plead guilty, has

affirmatively rejected responsibility and all the other

aggravating factors discussed above that are not

accounted for in the departures;

OR, IN THE ALTERNATIVE,

• a sentence outside the advisory Guideline Sentencing

Range of 78 months in recognition of the aggravating

factors addressed above.

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 19 of 22
2. Edward Lewis Brown

For the reasons set forth above, the government anticipates

recommending the following with respect to defendant Edward

Brown:

• one upward departure of two levels for disruption of a

governmental function and one upward departure of one

level for continuing criminal conduct while a fugitive,

resulting in an Offense Level 27 and a Guideline

Sentencing Range of 70 to 87 months; and

• a guideline sentence at the top of the Guideline

Sentencing Range, or 87 months, to reflect the fact

that the defendant did not plead guilty, has

affirmatively rejected responsibility and all the other

aggravating factors not accounted for in the

departures;

OR, IN THE ALTERNATIVE,

• a sentence outside the advisory Guideline Sentencing

Range of 87 months in recognition of the aggravating

factors addressed above.

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 20 of 22
VII. CONCLUSION

For the reasons set forth above, the government respectfully

requests that the defendants

 be sentenced in accordance with the government’s recommendation

herein.

Respectfully submitted,

THOMAS P. COLANTUONO

United States Attorney

By: /s/William E. Morse 

William E. Morse

D.C. Bar No. 421934

 Assistant U.S. Attorney

Office of the United States Attorney

53 Pleasant St., 4th Floor

Concord, New Hampshire 03301

(603) 225-1552

Dated: April 21, 2007

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 21 of 22
Certificate of Service

I hereby certify that a copy of the foregoing was sent this date by email to

edwardl.brown@yahoo.com and by regular U.S. mail, postage prepaid, to Edward Lewis

Brown and Elaine A. Brown, each at 401 Center of Town Road, Plainfield, New

Hampshire 03781.

/s/ William E. Morse 

Case 1:06-cr-00071-SM Document 170 Filed 04/24/07 Page 22 of 22