UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE 

UNITED STATES OF AMERICA 

v. Criminal No. 07-189-GZS 

DANIEL RILEY, 

 Defendant 

ORDER DENYING DEFENDANT RILEY’S MOTION TO DISMISS 

 

The Court now has before it Defendant Daniel Riley’s Motion to Dismiss, which asserts 

that the Court should vacate his convictions and dismiss the charges against him because he was 

never properly arraigned on the Third Superseding Indictment. (Docket # 429.) Specifically, 

Defendant Riley contends that he did not have a copy of the charging document at the time of his 

arraignment as required by Rule 10(a). The Government objects to the Motion arguing that even 

if Defendant Riley did not have a copy of the charging document at the time of his arraignment, 

such omission does not require vacation of the convictions and dismissal of all charges. 

I. Factual Background 

Defendant Daniel Riley was originally charged in an Indictment on September 12, 2007 

with violations of 18 U.S.C. §§ 372 (Count 1), § 371 (Count 2), § 3 (Count 3), and § 924(c) 

(firearm) (Count 4). The Court docket indicates that the defendant was arraigned, with defense 

counsel present, on September 13, 2007, and that he plead not guilty. On October 31, 2007, a 

Superseding Indictment was returned which charged the defendant with the same violations. The 

Court docket indicates that Defendant Riley was arraigned on that Superseding Indictment on 

November 20, 2007, and, with stand-by counsel present, Defendant Riley plead not guilty. On 

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January 9, 2008 a Second Superseding Indictment was returned charging the defendant with the 

same crimes, but included in Count 4, the 18 U.S.C. § 924(c) count, an allegation that the 

defendant used and carried a destructive device, thereby increasing the applicable minimum and 

maximum sentences. Arraignment was scheduled for January 15, 2008. By letter dated January 

11, 2008, stand-by counsel, Sven Wiberg, provided to the Court an executed “Waiver of 

Defendant’s Appearance at Arraignment,” which was signed by both stand-by counsel and by 

Defendant Daniel Riley. (Docket #s 145 and 160.) On January 14, 2008, the government moved 

to continue the arraignments on the Second Superseding Indictment for 24 to 48 hours (Docket 

#140), and Magistrate Judge Muirhead granted the Motion to Continue. On January 16, 2008, 

before the arraignments could be held on the Second Superseding Indictment, a Third 

Superseding Indictment was returned which made minor technical changes but charged Mr. 

Riley with the same charges as did the Second Superseding Indictment. On January 17, 2008, 

Mr. Riley’s three co-defendants were arraigned and each plead not guilty to all charges contained 

in the Third Superseding Indictment. It is not apparent from the record why Mr. Riley was not 

arraigned at the same time as his co-defendants.1

 However, on February 26, 2008, Defendant 

Riley was brought in for arraignment on the Third Superseding Indictment. It is the February 26, 

2008, Arraignment that Defendant Riley now claims was defective. 

The Court has listened to the recording of that arraignment. At the outset of the hearing 

the Magistrate Judge asked Mr. Riley if he had received a copy of the Third Superseding 

Indictment, to which the defendant replied, “No”.2

 The Magistrate Judge then asked again 

1

 Although Mr. Riley’s Waiver was filed just before the Third Superseding Indictment had been returned by the 

Grand Jury, the close timing of the filing of the waiver and the Third Superseding Indictment may have caused the 

Clerk’s Office to mistakenly believe Mr. Riley was waiving his appearance on the Third Superseding Indictment 

and, thus, the resulting delay in scheduling his arraignment. 

 

2

 There is nothing in the record that indicates the defendant had a copy of the Third Superseding Indictment at the 

time of arraignment. 

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whether he had received a copy of the Third Superseding Indictment and Defendant Riley again 

responded “No,” but added that he did not want a copy. Throughout the proceeding, Mr. Riley 

was uncooperative and, in one instance, verbally disrespectful to the Court. The Magistrate 

Judge reviewed each charge and entered not guilty pleas on behalf of Mr. Riley as to each count. 

II. Discussion 

The Federal Rule of Criminal Procedure governing arraignments provides, in pertinent 

part: 

An arraignment must be conducted in open court and must consist of: (1) ensuring that 

the defendant has a copy of the indictment or information; (2) reading the indictment or 

information to the defendant or stating to the defendant the substance of the charge; and 

then (3) asking the defendant to plead to the indictment or information. 

Fed. R. Crim. P. 10(a). In this case, Mr. Riley’s arraignment was conducted in open court and he 

was informed of the substance of the charges against him. Because of his oppositional behavior, 

Magistrate Judge Muirhead entered not guilty pleas on behalf of Mr. Riley as to each count. 

Therefore, the only potential deficiency in the proceeding is that Mr. Riley did possess a copy of 

the Third Superseding Indictment. The failure to comply with the Rule’s provision/requirement 

that defendant receive a copy of the indictment resulted from Defendant Riley’s own statement 

that he did not want the Court to provide him with a copy of the Third Superseding Indictment. 

Defendant Riley concedes in his Motion that the United States Supreme Court, in 

Garland v. Washington, 232 U.S. 642, 645 (1914), has held that lack of a formal arraignment 

does not deprive a defendant of any substantial right, so long as the defendant had sufficient 

notice of the accusation and an adequate opportunity to defend himself. Additionally, the Courts 

of Appeals which have considered this issue have likewise found that a technical failure to 

comply with Rule 10 does not affect a substantial right as long as the accused has sufficient 

notice of the charges, had adequate opportunity to prepare a defense, and the technical lack of 

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formal arraignment did not prejudice the defendant. See e.g., United States v. Lalonde, 509 F.3d 

750 (6th Cir. 2007) (held that although the Magistrate Judge had failed to read the indictment to 

the defendant and, thus, arraignment did not comply with Rule 10, the defendant waived any 

right to challenge the arraignment by pleading guilty); United States v. Mancias, 350 F.3d 800, 

807 (8th Cir. 2003) (finding that the “absence of formal arraignment is of little consequence”) 

(quoting United States v. Reynolds, 781 F.2d 135, 136 n. 2 (8th Cir. 1986)); United States v. 

Joyner, 201 F.3d 61, 79 (2d Cir. 2000) (quoting Garland, 232 U.S. at 645); United States v. 

Cook, 972 F.2d 218, 222 (8th Cir. 1992) ("an arraignment is not required where the defendant 

has had sufficient notice of the accusation and an adequate opportunity to defend himself at 

trial") (citing Garland, 232 U.S. 642); United States v. Romero, 640 F.2d 1014, 1015 (9th Cir. 

1981) (finding that defendant was not subject to any prejudice as a result of the district court's 

failure to read the indictment to him at arraignment because defendant had received a copy of the 

indictment and had an opportunity to read it before making his plea); United States v. Coffman, 

567 F.2d 960, 961 (10th Cir. 1977) (finding that defendant was not prejudiced by the failure to 

be formally arraigned when he had been given a copy of the indictment and when the failure to 

arraign was inadvertent); United States v. Rogers, 469 F.2d 1317, 1318 (5th Cir. 1972) (finding 

that defendant suffered no prejudice when the court failed to read the indictment or provide a 

copy to defendant at arraignment because he was represented by counsel and did not allege that 

he was ignorant of the offense charged); United States v. Clark, 407 F.2d 1336, 1337 (4th Cir. 

1969) (finding no merit in defendant's challenge for failure to receive a copy of the indictment 

when defense counsel had been given a copy of the indictment and defendant had informed the 

court that he had read the indictment and understood the charges against him). 

Assuming the facts to be as the defendant asserts, that he had not received a copy of the 

Third Superseding Indictment at the time of arraignment, the legal issue is whether Mr. Riley: 

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ndictment prior to or at his 

Arraign

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

hereby, DENIED. 

/s/ George Z. Singal

(1) had sufficient notice of the accusation, (2) had an adequate opportunity to defend himself, 

and (3) was prejudiced. First, the Court notes that when, during his arraignment, Defendant was 

afforded the opportunity to receive a copy of the Third Superseding Indictment he unequivocally 

stated that he did not want one. In addition, Mr. Riley had been arraigned twice previously for 

the same conduct – the original Indictment and on the First Superseding Indictment.3 

Apparently being familiar with the charges, he filed a written waiver of appearance at the 

arraignment on the Second Superseding Indictment. As is evidenced by his numerous pleadings 

filed pretrial and during trial, and by statements he made at pretrial conferences and hearings, it 

is clear that he understood the charges against him. Moreover, the electronic notice which 

accompanied the electronic distribution of the Third Superseding Indictment clearly 

demonstrates that Attorney Sven Wiberg, then stand-by counsel but who later became trial 

counsel, received a copy of the Third Superseding Indictment before the arraignment on 

February 26, 2008. (Docket #162.) The trial record also demonstrates beyond doubt that the 

defendant and his trial counsel understood what the charges were and that he had mounted a 

defense to all of those charges. Therefore, the Court finds that Defendant Riley knew what the 

charges against him were, had an ample opportunity to defend himself, and was not prejudiced 

by the failure to receive a copy of the Third Superseding I

ment. 

Accordingly

__________________ 

 Chief United States District Judge 

 

3

 With respect to Mr. Riley, the only noteworthy change between the First Superseding Indictment and the Third 

Superseding Indictment was the addition of the “destructive device” charge to the § 924(c) firearm charge. 

However, the destructive device charge was included in the Second Superseding Indictment, to which Mr. Riley had 

waived his right of appearance. 

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Dated this 10th day of July, 2008. 

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