UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA )

Plaintiff, )

v. ) Criminal No. 1:06-cr-071-SM

ELAINE A. BROWN and )

EDWARD LEWIS BROWN, 

)

Defendants. 

)

PETITIONER BERNHARD BASTIAN'S MEMORANDUM IN OPPOSITION 

TO THE UNITED STATES' MOTION FOR LEAVE TO FILE SURREPLY

Local Rule 7.1(e)(3) governs surreply memoranda, and provides that leave to file surreply

memoranda will only be granted under extraordinary circumstances. The United States has not

presented any extraordinary circumstances in its Motion for Leave (DN 315). The only

justification presented by the United States is its belief that Petitioner Bastian presented a

"belated" judicial estoppel argument in his Reply Memorandum in Support of his Motion for

Summary Judgment (DN 314). The judicial estoppel argument is not belated. In fact, the issue

of the United States urging the Court to issue the Orders releasing the property at issue was

explored at length in Petitioner's Motion for Summary Judgment (DN 311, pp 4-5). Petitioner

pointed out that the United States changed its position: "Oddly, many months later, the United

States paid another visit to Riley's Sport Shop, Inc. and said it wanted the guns back." Id., pp. 5,

8-9. Petitioner characterized the government's argument as an "attempt to turn back the hands of

time to erase its own conduct." Id., pp. 8-9. Indeed, in his Reply Memorandum, Petitioner

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Case 1:06-cr-00071-SM Document 316 Filed 03/16/10 Page 1 of 4
Bastian presented case law supporting the argument that the United States should be estopped

from this change of position, but it is hardly a new argument.

The proffered surreply attached to the United State's Motion for Leave provides no new

evidence or law in any event. First, the United States claims it need not present any evidence to

survive summary judgment which, of course, is not the law. Nonmovants may not merely rest

on their pleadings. Instead, a nonmovant must produce evidence. Ayala-Gerena v. Bristol

Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996). 

The proffered surreply also suggests that judicial estoppel cannot apply because a

different United States officer requested the Order releasing the property, not the United States

Attorney. Again, the United States offers no law suggesting that the judicial estoppel doctrine

depends, in the case of the United States, on the particular agent of the government making the

contradictory argument. As an equitable doctrine, judicial estoppel is not so inflexible. The

United States also conveniently omits in its discussion the fact that the U.S. Attorney was served

with Judge Muirhead's order, twice. The United States also fails to address the uncontested fact

that the U.S. Marshall was fully apprised of the transfer of the property to Petitioner.

(Deposition of Petitioner, which was attached as Exhibit A to DN 309). It appears that the

United States Attorney seeks to file a surreply to only reiterate his belief that the entirety of the

judicial branch does not understand the law.1 At no point has the U.S. Attorney explained why

he never objected to Judge Muirhead's Orders. Nor has he contradicted the claim that the U.S.

Marshall's Office was fully apprised of the transfer of the property.

1

 The United States claims, in its Objection to Petitioner's Motion for Summary Judgment, that "... the magistrate

judge's order was unlawful ..." (DN 312, p.4). In its proffered surreply, the United States appears to argue that the

Probation Office labors under the same misunderstanding.

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In conclusion, the United States has not presented any extraordinary circumstances that

justify the filing of a surreply, and the surreply itself adds nothing of substance to the discussion.

Accordingly, Petitioner respectfully requests that the Motion for Leave be overruled.

Respectfully submitted,

 s://David S. Kessler 

DAVID S. KESSLER (0041982)

Blaugrund, Herbert & Martin Incorporated

300 West Wilson Bridge Road, Suite 100

Worthington, OH 43085

(614) 764-0681

(614) 764-0774 (facsimile)

dsk2@bhmlaw.com

Attorney for Third Party Petitioner, Bernard Bastian

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Case 1:06-cr-00071-SM Document 316 Filed 03/16/10 Page 3 of 4
CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of March, 2010, a true and accurate copy of the

foregoing will be sent by the ECF filing system to: Seth R. Aframe, Esq., Assistant United

States Attorney at seth.aframe@usdoj.gov.

 s://David S. Kessler 

DAVID S. KESSLER

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