UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE 

UNITED STATES OF AMERICA 

v. Criminal No. 07-189-GZS 

DANIEL RILEY, JASON GERHARD and 

CIRINO GONZALEZ, 

 Defendants 

ORDER DENYING DEFENDANT RILEY’S MOTION TO SUPPRESS 

Daniel Riley has moved to suppress the statements he made to government agents during 

proffer sessions and exclude all evidence gathered as a result of the derivative use of those 

statements because they were not voluntarily made. Specifically, Riley asserts that his former 

court appointed attorney, Mark Howard Esq., mislead him into believing he “would be released 

if he cooperated with the Marshals.” Motion to Suppress (Docket # 102) ¶ 2. Defendant Riley 

also states that Assistant United States Attorney Arnold Huftalen told him “that [the] judge 

releases no one without my permission.” Motion to Suppress ¶ 5(a). The Government denies 

that Riley’s statements were coerced or involuntarily made. In addition, the Government asserts 

that it does not intend to offer statements made by Riley in its case in chief; however, pursuant to 

the terms of the proffer agreement it has with Mr. Riley, the Government has reserved the 

derivative use of the information provided by Riley for use at trial. 

I. FACTS 

The Court held a suppression hearing in this matter on February 4, 2008. Based on the 

testimony presented and exhibits admitted in evidence at the suppression hearing, the Court finds 

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the following. After Daniel Riley was arrested in September 2007, Mr. Howard was appointed 

by the Court to be, and did thereafter become, the attorney for Mr. Riley. Mr. Riley indicated to 

Mr. Howard that he was eager to obtain pretrial release.1 Mr. Howard talked to Assistant United 

States Attorney Robert Kinsella about the potential for Mr. Riley to be released. Mr. Kinsella 

told Mr. Howard that he believed that Mr. Riley was a dangerous individual who needed to be 

detained, but that there was a possibility of pretrial release if Mr. Riley cooperated and impressed 

the Government with the type of information he provided. Mr. Howard conveyed the potential 

for release to Mr. Riley and Mr. Riley agreed to cooperate. 

On September 19, 2008, Mr. Howard had in his possession a copy of the proffer letter 

agreement drafted by the Government, which he presented to Mr. Riley. See Government 

Exhibit # 1. The proffer agreement provides, in pertinent part: 

 (1) Except as provided in this letter, no statement made by Mr. Riley during the 

proffer session will be used by the government in any direct case against him in 

any trial or other proceeding unless such statement is false, misleading or made 

with intent to obstruct justice, in which case the statement may be used directly 

against Mr. Riley in any proceeding for any purpose; 

(2) If Mr. Riley testifies contrary to anything he says in the proffer in any 

trial or other proceeding, the government may use any statement made by Mr. 

Riley during the proffer or information obtained directly or indirectly from the 

proffer for the purpose of impeachment, cross-examination or rebuttal. 

(3) The government may make derivative use of and may pursue investigative 

leads suggested by any statements made by Mr. Riley or other information 

provided by him, for any purpose. This provision eliminates the necessity for a 

Kastigar hearing at which the government would otherwise be required to prove 

that the evidence it would introduce in any trial or other proceeding is not tainted 

by any statements made by or other information provided by Mr. Riley 

during any proffer. 

 

1

 Riley asserts in his Motion that Mr. Howard told him that if he cooperated he would be released and it would put 

him “in the best position for a reduced sentence.” Motion to Suppress ¶¶ 5(a), 6. From this statement it is clear that 

Mr. Riley understood that any type of release he would be eligible to obtain would be pretrial and not that he 

understood that he may be released and ultimately not charged. 

2

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(4) Pursuant to U.S.S.G. §IB1.8, the government agrees that any selfincriminating information provided by Mr. Riley during the examination will not 

be used in determining his applicable sentencing guideline range. 

Government Ex. 1, at 1-2. 

In private, Mr. Howard discussed each and every operative provision of the proffer letter 

including the Government’s reservation of the use of derivative evidence. Mr. Riley indicated to 

Mr. Howard that he understood the letter, including the derivative use provision and signed the 

proffer letter signifying his agreement to its terms. Id. at 2. Prior to Mr. Riley providing any 

information to the Government, Mr. Kinsella also explained each of the paragraphs including the 

derivative evidence paragraph. Thereafter, Mr. Riley provided information to the Government. 

At the end of that first proffer session, the Deputy United States Marshal in attendance at the 

proffer session told Mr. Riley that he had probably “saved lives” with the information he 

provided. 

During a second proffer session, on September 20, 2008, a deputy United States Marshal 

stated that Mr. Riley would not be released. That statement caused some alarm to Mr. Riley as 

well as to Mr. Howard. Immediately following the comment, the participants of the proffer 

session took a break. In the hallway outside the conference room where the proffer session was 

being conducted, Mr. Huftalen told Mr. Howard that he was surprised by the deputy’s comment, 

pointed out that the deputy does not speak for the prosecution, and emphasized that the potential 

for Mr. Riley’s pretrial release remained on the table. In spite of that statement being made, Mr. 

Riley continued to provide information to the Government at that proffer session and at another 

proffer session on September 24, 2008. Mr. Riley was never released on bail. 

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II. DISCUSSION

The critical “voluntariness” issue is whether the conduct of “law enforcement officials 

was such as to overcome the will to resist and bring about a confession not freely selfdetermined.” Arizona v. Fulminante, 499 U.S. 279, 288 (1991). The statement of a criminal 

defendant that was obtained as a product of police coercion is deemed to be involuntarily given 

and is subject to suppression. Id. at 287-90. In other words, governmental coercion is a 

necessary predicate to finding a confession involuntary. Colorado v. Connelly, 479 U.S. 157, 

167 (1986). In addition, there must be some causal connection between the police conduct and 

the confession. Id. at 164, n.1. 

Based on the evidence presented at the hearing, the Court finds that Mr. Riley was not 

subject to any type of coercion by the Government to cooperate or make any statements. The 

statements made by Mr. Riley in the proffer sessions were freely and voluntarily given after a 

full explanation of each of the specific provisions set forth in the proffer letter. Mr. Riley was 

not mislead by anything said to him by Mr. Howard or Mr. Kinsella. Specifically, Mr. Riley was 

not told that if he cooperated, he would be released. At all times, Mr. Riley had a full 

understanding of the situation; that is, because of his cooperation there was a possibility that he 

could be released on bail. There is absolutely no credible evidence to support the claim that 

attorney Howard lied to Mr. Riley about the terms or meaning of the proffer agreement or about 

the likelihood of being released on bail. 

On this record, the Court finds that the provisions of the proffer letter are fully operative. 

Specifically, subject to the Rules of Evidence and other provisions of the law, the Government 

may offer at trial evidence resulting from the derivative use, as set forth in the proffer letter, of 

the information provided by Mr. Riley. 

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Accordingly, the Court ORDERS that Defendant Riley’s Motion to Suppress be, and it is 

hereby, DENIED. 

 /s/ George Z. Singal__________________ 

 Chief United States District Judge 

Dated this 8th day of February, 2008. 

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