UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v.

Jason Gerhard Case No. 07-cr-168-01-PB

Daniel Riley Case No. 07-cr-189-01-PB

Robert Wolffe Case No. 07-cr-190-01-PB

Cirino Gonzalez Case No. 07-cr-191-01-PB

O R D E R

The defendants in the above-captioned cases have been

charged with criminal offenses, including conspiracies, that

allegedly stem from their efforts to prevent the United States

Marshals Service from arresting two fugitives, Edward and Elaine

Brown. The Browns were convicted of multiple counts of tax fraud

in a trial overseen by one of my colleagues, Chief District Judge

Steven McAuliffe. The Browns were fugitives until their recent

arrests and the defendants in the above-captioned cases allegedly

assisted the Browns in avoiding apprehension. 

It has been widely reported in the media that the Browns and

other members of the alleged conspiracy have threatened to kill 

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Judge McAuliffe. In orders disqualifying himself in the Gonzalez

and Riley cases, Judge McAuliffe noted that “[b]ecause those

public statements included threats of violence and physical harm

directed at me, a reasonable person, fully informed of the facts,

might understandably question my ability to remain impartial were

I to preside.” In this order, I explain why I, too, have decided

to disqualify myself from presiding over these cases. 

Canon 3(c)(1) of the Code of Conduct for United States

Judges requires a judge to disqualify himself from any case “in

which the judge’s impartiality might reasonably be questioned.” 

Under this test, a judge ordinarily must disqualify himself if a

reasonable person, knowledgeable of the relevant facts, would

have reason to question the judge’s impartiality.

Judge McAuliffe and I have been friends for more than 20

years. Although I am confident that I could preside impartially

over the above-referenced cases notwithstanding this friendship,

it is likely that at least some reasonable observers would

conclude that my impartiality was compromised by my friendship

with someone who allegedly has been threatened by the defendants’

alleged co-conspirators. See United States v. Jordan, 49 F.3d 

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152, 158 (5th Cir. 1995) (trial judge abused her discretion in

presiding over a criminal case in which defendant “was involved

in an extremely hostile relationship” with the judge’s close

friend because a reasonable person would doubt the judge’s

impartiality). 

A defendant cannot force a judge to disqualify himself in a

previously assigned case by making threats against the judge or

his friends. However, the threats at issue here allegedly were

made before the cases were assigned to me and I have no basis to

believe that the alleged threats were made to provoke my

disqualification. Under these circumstances, prudence suggests

that the cases should be handled by a judge who does not have a

close friendship with Judge McAuliffe. Accordingly, I disqualify

myself from presiding over these cases. 

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

October 12, 2007

cc: Counsel of Record

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