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 

dental office workers (Counts Seven through Fourteen) and two 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 1 of 22
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 

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 

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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.

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.

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 3 of 22
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 

conditions of release, but their actions have resulted in the 

significant disruption of a governmental function warranting an 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 4 of 22
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 

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 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 5 of 22
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.

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 

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 

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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

(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 

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important consideration at sentencing. United States v. 

Jiminez-Beltre, 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 

andaaaaaaaaaaaaaaaaaaaaaa 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 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.] 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 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. 

•

Eddddddddddddddddddddddddddddddddddddddddddddddddd

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: 

• 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 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 9 of 22
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.]

• 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.]

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 10 of 22
• 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.]

• 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.]

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 11 of 22
• 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 167 Filed 04/21/07 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 167 Filed 04/21/07 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.]

• Defendants Elaine Brown and Edward Brown intentionally 

and routinely disregarded other laws such as those requiring 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 14 of 22
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.]

• 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 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 15 of 22
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 

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 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 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. 

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. 

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); 

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 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.

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 167 Filed 04/21/07 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.

2. Edward Lewis Brown

For the reasons set forth above, the government anticipates 

recommending the following with respect to defendant Edward 

Brown:

Case 1:06-cr-00071-SM Document 167 Filed 04/21/07 Page 19 of 22
• 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 167 Filed 04/21/07 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 167 Filed 04/21/07 Page 21 of 22
Certificate of Service

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

email to edwardl.brawn@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 167 Filed 04/21/07 Page 22 of 22