UNITED STATES DISTRICT COURT KC; m^TQirr rnMDDISTRICT OF NEW HAMPSHIRE ^'nisTRICT OF ^'M 

DANIEL JOHN RILEY 

Claimant, 

v, 

UNITED STATES OF AMERICA 

Respondent, 

Case Number 1:07-cr-189-GZS 

::;3 MOV 22 P \?-QI 

MOTION TO COMPEL SPECIFIC PERFORMANCE, 

BREACH OF COOPERATION AGREEMENT 

BY AFFIDAVIT, SUPPORTED BY MEMORANDUM 

OF LAW 

BY SPECIAL APPEARANCE 

Indiana State ) 

) Verified and Subscribed 

Vigo County ) 

I, Daniel-John:Riley, hereinafter Affiant, am of majority age and competent to testify to wit: 

1. That, on or about June 19, 2009 Affiant, with counsel present, entered into 

an oral Cooperation Agreement with Assistant United States Attorney [AUSA] Arnold 

Huftalen, at the FJnited States Attorney's Office at Concord, New Hampshire. 

2. That, in pertinent part, said Cooperation Agrecsnent consisted of Affiant 

providing relevant reliable information and a willingness to testify in the Ed Brown 

trial for the government; in return Affiant was explicitly promised [ by AUSA Huftalen] the government would submit a Rule 35(b) motion, to subtract at minimal, 11 

years of Affiant's sentence. 

3. That, the government also promised not to object to Affiant moving the Court 

to further downward departure, for the previous substantial assistance Affaint rendered prior to his trial, that peacefull)' ended a 9 month standoff and saved lives. 

4. Be it affirmed, Affiant s previous substantial assistance was not taken into 

consideration by the sentencing Court. 

5. Be it affirmed, Affiant has fulfilled his obligation to the government under 

said Cooperation Agreement, giving something ot value to the government, thus making 

the government obligated to Affiant for specific performance: to submit said Rule 35 

(b) motion. 

6. That, Affiant has waited approximately 17 months for the government to fulfill its explicit promise of performance in accord the Cooperation Agreement; wHich 

is now past due and owing; giving rise to bad faith on the part of the government, 

as explained in the Memorandum of Law attached to this affidavit and incorporated 

herein by reference, as Riley's Exhibit A. 

7. That, Affiant was not obligated~to make himself available to testify or to 

reveal relevant reliable information, but did, in accord with the Cooperation Agreement, with the expressed understanding the government would come to Affiant's aid 

with a Rule 35(b) motion, as explicitly indicated by AUSA Huftalen, which the Affiant relied upon. 

8. Be it affirmed, Affiant has been ostracized and suffers from a heightened 

threat to his physical safety and well being in prison, due to Affiant's performance 

pertaining to said Cooperation Agreement. 

VERIFICATION 

As no Notary Public is available, the herein Affiant affirms and attests, in accord 

with 28 USC § 1746 requiring United States Courts to give "like force and efpage 1 of 3 

Case 1:07-cr-00189-GZS Document 665 Filed 11/22/10 Page 1 of 3
feet" as though a Notary Public had notarized the above stated affidavit. 

I verify under penalty of perjury under the laws of United States of America that 

the foregoing is true and correct. Executed on this /C^r day of ^Jove^nLeX' , 

A.D. 2010. 

For: /s / by : rV^/ ^ 3 # 6 - ' A 

DANIEL JOHN RILEY ^Datfiel-John :Riley 

[14528-052] Affiant 

P0 Box 33 

FCI/GMU Terre Haute 

Terre Haute, Indiana 47808 

MEMORANDUM OF LAW EXHIBIT A 

1. This claim is to enforce a Cocperation Agreement [contract / bargain of the 

.parties], w&Lch the government has breached. Hie claimant-[Riley] has fulfilled his 

obligation to the government, therefore the government is obligated to perform, by 

jsubmitting a Rule 35 (b) motion for a minimal of 11 years off clfn-rcaBt^s sentance. 

STANDING, TO, COMPEL PERFORMANCE 

2. When the government makes a premise to reward cooperation through a motion 

(for a reduced, sentence, and fails to fulfill it's promise, the promisee has standing 

in the courts. "In addition, because promises to raake such motions are analogous to 

plea agreements, a defendant would likely not be without recourse in the case of 

[breach by the government." US_vHuerta., 878 F2d 89, 93 (2nd Gir. 1989). Santobello v 

New York, 404 US 257, 262 (1971) (A premise in an agreement is binding and may Be 

enforced with the remedy of specific performance), see also Allen v Hadden, 57 F3d 

1529 (10th Gir. 1995). 

3. A prosecutor has significant discrecticn in determining whether to make 

jsuch a motion, but a decision by a prosecutor not to make such a motion will be reP

"ewed if it violates the terms of a cooperation agreement, US vDoe, 934 F3d 353, 

8 (D.G. Gir. 1991). 

4. A defendant may bring an action, for specific performance of a copperation 

[agreement that obligates the government '• to make a motion for a downward departure in 

Iretum for substantial assistance, if the prosecutor fails to do so, US v Revis, 22 

Supp 2d 1242, 1259 (N.D. Oklahoma 1998), citing US v Kuntz, 908:F2d 655, " 657 

(10th Gir. 1990). US v Lewis, 896 F2d 246, 249 (7th Gir. 1990) (" Where a prosecutor 

has. promised to make a § 5K1.1, [as a matter of law-equivalent to a Rule 35(b): just 

jpost-convictiGn], and the defendant has relied on that promise, the, defendant will 

pave recourse in the court if the government breaks that promise.."), see also US v 

LaGuardia, 902 F2d 1010, 1016 (1st Gir. 1990). 

28 USC § 2255 

5. If, for any reason, the Court disregards claimant's standing, and construes 

this claim as a § 2255, this claim will hereby then be considered withdrawn by the 

claimant, into abeyance [delaying justice], to be submitted at a later date. 

CLAIM FOR RELIEF 

6. The claiiaant [Riley] has a right to enforcement of a bargain of the parties 

freely entered into; with the implied condition of good faith. "If the government 

and the defendant Jbave established an agreement reaardine Rule 35i'b) motion and the 

I 

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Case 1:07-cr-00189-GZS Document 665 Filed 11/22/10 Page 2 of 3
defendant has fulfilled his obligation under the agreement, then he is entitled to 

performance." Garcia v Heeler, US Dist LEXIS 23633 (D. NJ 1998). 

7. In the case at bar, the government has breached the cooperation agreement 

and has not lived up to it's end of the bargain, causing claimant to be aggrieved of 

his due and owing Rule 35(b) motion: for a minimal 11 year sentence reduction; and 

wl-fere the government would not object to claimant requesting a further sentence reduction for the previous sustantial assistance provided to the government in September 2007, wHlich lead to the peaceful conclusion of a 9 month syandoff. 

WHEREFORE: The claimant seeks an order to compel specific performance by the government, to submit a Rule 35(b) motion to the Court or an evidence hearing to determine 

if the gcvemment acted in bad faith. 

For; /s/ 

DANIEL JOHN RILEY liel-John 

Auth. Rep. 

November (£*_ , A.D. 2010 

Certificate of Service 

I, Daniel-John .-Riley, hereby certify on No^efther /iT JjCtQ one (1) 

true and correct copy of the CLAIM TO COMPEL PERFORMANCE by~affidavit 

with exhibit(s) attached, have been mailed via pre-paid first class 

U.S. Postal Service Mail, by placing it into the mail depository at 

FGI Terre Haute, to the following: 

For the United Staes of America: 

United States Attorney's Office 

ATTN: Arnold Huftalen 

53 Pleasant Street, 4th Floor 

Concord, New Hampshire 03301-3904 

Courtesy copy: 

Sven Wiberg 

Attorney at Law 

2456 Lafayette Road, Suite 7 

Portsmouth, New Hampshire 03801 

Respectfully prepared and signed on the date written above, 

For /s/ 

DANIEL JOHN RILEY 

by r^^uuM '^crm-

,—-B-cTniel-John :Rile 

Auth. Rep. 

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