**NO COPY OF THIS TRANSCRIPT MAY BE MADE PRIOR TO 2/1/10 

 1 

 UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW HAMPSHIRE 

 * * * * * * * * * * * * * * * * * * 

 * 

 UNITED STATES OF AMERICA * 

 * 09-cr-30-01-02-GZS 

 v. * July 8, 2009 

 * 1:00 p.m. 

 EDWARD and ELAINE BROWN * 

 * 

 * * * * * * * * * * * * * * * * * * 

 DAY 7 

 AFTERNOON SESSION 

 TRANSCRIPT OF TRIAL 

 BEFORE THE HONORABLE GEORGE Z. SINGAL 

 AND A JURY 

 Appearances: 

 For the Government: Arnold Huftalen, AUSA 

 Terry Ollila, AUSA 

 U.S. Attorney's Office 

 53 Pleasant Street 

 Concord, NH 03301 

 For Edward Brown: Michael J. Iacopino, Esq. 

 Kristin Clouser, Esq. 

 Brennan, Caron, Lenehan 

 & Iacopino 

 85 Brook Street 

 Manchester, NH 03104 

 For Elaine Brown: Bjorn Lange, Asst. Fed. Defender 

 Federal Defender's office 

 22 Bridge Street 

 Concord, NH 03301 

 Court Reporter: Sandra L. Bailey, LCR, CM, CRR 

 Official Court Reporter 

 United States District Court 

 55 Pleasant Street 

 Concord, NH 03301 

 (603)225-1454 

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 1 I N D E X 

 2 

 3 Closing Arguments: 

 4 By Ms. Ollila, page 3 

 5 By Mr. Lange, page 37 

 6 By Mr. Iacopino, page 43 

 7 By Mr. Huftalen, page 54 

 8 

 9 

 10 

 11 Jury Instructions, page 61 

 12 

 13 

 14 

 15 Jury Questions, page 99 and 100 

 16 

 17 

 18 

 19 

 20 

 21 

 22 

 23 

 24 

 25 

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 1 BEFORE THE JURY 

 2 THE COURT: Is the government prepared to 

 3 close? 

 4 MS. OLLILA: The United States is, your Honor. 

 5 THE COURT: The jury will be pleased to hear 

 6 from you. 

 7 MS. OLLILA: Thank you very much. Good 

 8 afternoon, ladies and gentlemen. Before I begin I would 

 9 like to just take a moment to thank you all very much. 

 10 You have sat patiently, listened intently and seeing 

 11 over 200 exhibits during a very short period of time. 

 12 THE COURT: Move the microphone a little 

 13 closer, I'm having trouble hearing. 

 14 MS. OLLILA: I'm sorry, your Honor. 

 15 THE COURT: Thank you. 

 16 MS. OLLILA: I've always thought my voice has 

 17 been too loud, your Honor. 

 18 THE CLERK: Is it on? 

 19 MS. OLLILA: I think it is on. I'll try to 

 20 keep my voice up, your Honor. 

 21 THE COURT: Very good. 

 22 MS. OLLILA: So on behalf of the United 

 23 States, on behalf of Assistant United States Attorney 

 24 Arnold Huftalen, on behalf of paralegal Dena Blanco, and 

 25 on behalf of senior inspector Andre LaBier, we thank you 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 3 of 102
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 1 all very much. 

 2 As you now know, ladies and gentlemen, the 

 3 criminal conduct engaged in by Edward and Elaine Brown 

 4 which forms the basis of the charges in the instant 

 5 indictment occurred after they were indicted in April of 

 6 2006 for, among other things, tax evasion. Although 

 7 they were charged with tax evasion in a 17-count 

 8 indictment in April of 2006, they weren't taken into 

 9 custody until May, May 24th, 2006, when members of the 

 10 United States Marshal Service engaged in a ruse and 

 11 arrested Edward and Elaine Brown outside of Elaine 

 12 Brown's dental practice located on Glen Road in Lebanon, 

 13 New Hampshire. After they were arrested, they were 

 14 transported to the United States District Court, this 

 15 very courthouse, arraigned and then released on bail 

 16 conditions. 

 17 In January of 2007, January 9th, 2007, Edward 

 18 and Elaine Brown proceeded to trial. After three days 

 19 of trial, Edward and Elaine Brown decided that they 

 20 didn't like what was happening, so they refused to come 

 21 back. The court issued an arrest warrant for defendant 

 22 Edward Brown, and he never returned. 

 23 Because it had been a long weekend, Chief 

 24 Deputy Gary DiMartino, who was in contact with Edward 

 25 Brown and Elaine Brown, successfully convinced the 

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 1 defendant Elaine Brown to return to trial, and she in 

 2 fact did. She returned on Tuesday, January 16th, 2007. 

 3 When she did so, the court, understandably, 

 4 amended her bail conditions. The court ordered that she 

 5 not return to 401 Center of Town Road, the residence she 

 6 shared with her husband Ed Brown. The court also 

 7 ordered that she reside with her son David in 

 8 Massachusetts. And the court also ordered that she wear 

 9 an electronic monitoring bracelet on her ankle. 

 10 The jury returned its verdict on January 18, 

 11 2007. Defendants Edward and Elaine Brown were convicted 

 12 on all 17 counts of the indictment. Sentencing was 

 13 scheduled to commence on April 24, 2006, and Elaine 

 14 Brown was once again released on the same bail 

 15 conditions. 

 16 On February 21st, 2007, Elaine Brown removed 

 17 the electronic monitoring device from her ankle and 

 18 returned to 401 Center of Town Road. As it had done 

 19 when defendant Ed Brown failed to come back to court, 

 20 the court issued an arrest warrant for the defendant 

 21 Elaine Brown. 

 22 On April 24th, 2007, both defendants, Edward 

 23 and Elaine Brown, were sentenced by the court, sentenced 

 24 in absentia. Neither one showed up. 

 25 The court ordered both to serve a 63-month 

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 1 term of imprisonment. 

 2 By the time the court imposed the sentence on 

 3 Edward Brown it had been three and a half months since 

 4 he had fled. And by the time the court imposed the 

 5 sentence on Elaine Brown it had been just over two 

 6 months since she returned to the very cause that she 

 7 lived for. 

 8 What did they do during their time, ladies and 

 9 gentlemen? They solicited supporters, supporters to 

 10 take up arms with them. They spent their time stock 

 11 piling weapons, lethal weapons, all in order to forcibly 

 12 resist any attempt by law enforcement to take them into 

 13 custody. 

 14 Ladies and gentlemen, Edward and Elaine Brown 

 15 were not going to surrender. They were never going to 

 16 surrender. They wanted to wage war against the United 

 17 States, and they wanted to wage war against the United 

 18 States Marshal Service, just like what Ed Brown told 

 19 undercover Deputy Robinson on the porch during the night 

 20 of October 4. Any attempt by law enforcement to take 

 21 either he or his wife into custody would be met with 

 22 certain death. 

 23 Now, as you sit and listen to what will 

 24 inevitably be a lengthy attempt by defense counsel to 

 25 justify Edward and Elaine Brown's conduct -- 

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 1 MR. LANGE: Objection. 

 2 THE COURT: Yes. 

 3 MR. LANGE: Speculation. 

 4 THE COURT: Go ahead. 

 5 MS. OLLILA: To justify their conduct based 

 6 upon their personal belief of the tax laws, keep this 

 7 point in mind. It simply didn't and doesn't matter what 

 8 Edward and Elaine Brown's views are on taxation. The 

 9 fact is, they were charged in an indictment, convicted 

 10 by a jury of their peers, and sentenced by a United 

 11 States District Court judge. They alone decided that 

 12 their rules, not the rules and not the law of the United 

 13 States, would apply. 

 14 But they don't get to decide, ladies and 

 15 gentlemen, that when the outcome is contrary to what 

 16 they want, that they somehow have the right to turn 

 17 their back, head home, create a massive fortress of 

 18 firearms, IED's and pipe bombs, get caught and then 

 19 incredibly come here and try to turn the tables -- 

 20 MR. LANGE: Objection. Burden shifting. 

 21 MR. IACOPINO: I join, your Honor. 

 22 MR. LANGE: Burden shifting. 

 23 THE COURT: Rephrase. 

 24 MS. OLLILA: Edward and Elaine Brown want you 

 25 to believe they are innocent. 

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 1 MR. LANGE: Objection, same ground. 

 2 THE COURT: I said rephrase. 

 3 MS. OLLILA: Edward and Elaine Brown were tax 

 4 protesters. That much is absolutely clear. And they 

 5 believe they didn't have to pay their taxes. But there 

 6 was nothing about them or their views that equated to 

 7 peacefulness. They were devoted, single-mindedly 

 8 devoted to launching an offensive war in support of 

 9 their cause. They didn't care about the jury's verdict. 

 10 They didn't care about the court's arrest warrants. 

 11 They didn't care about the law. They certainly didn't 

 12 care that they had been sentenced to a term of 

 13 imprisonment because Edward and Elaine Brown only do 

 14 what suits their purpose. 

 15 Didn't Edward Brown say it so succinctly 

 16 himself when he testified yesterday. When he was 

 17 questioned about the tax evasion verdict, this is what 

 18 he said. He said, I could have cared less about the 

 19 verdict. I had no consideration for those people 

 20 anymore. 

 21 Doesn't this statement alone so epitomize what 

 22 Edward and Elaine Brown believed? How do you know that 

 23 the second Edward and Elaine Brown turned their backs 

 24 and went home that they had every intention to wage war? 

 25 Well, you can start by looking at their 

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 1 residence. It is an enormous structure. Almost 10,000 

 2 square feet surrounded by a hundred acres of land. It 

 3 has a driveway that is over a quarter mile long and 

 4 360-degree views. The residence has a windmill, solar 

 5 panels. Can be powered either on or off the grid and 

 6 has an enormous generator that can power the entire 

 7 house. Although the residence would seemingly be 

 8 impenetrable based upon its location, Edward and Elaine 

 9 Brown and their supporters, their co-conspirators, left 

 10 nothing to chance. 

 11 Extensive effort was taken to fortify the 

 12 perimeter against the enemy, the United States Marshal 

 13 Service. Nailed to the many trees covering the entire 

 14 perimeter were containers of the binary explosive 

 15 compound Tannerite. Each container came conveniently 

 16 equipped with a bright orange viewing label and a 

 17 targeting site. If more Tannerite was needed, Edward 

 18 and Elaine Brown and their supporters need only take a 

 19 few steps into their garage where more was ready for 

 20 immediate use. 

 21 What was also clear was that Ed and Elaine 

 22 Brown experimented with zip guns, what Ed Brown now 

 23 calls noise makers, as yet another way to guard against 

 24 the United States Marshal Service attempting to enter 

 25 their property. 

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 1 As the testimony made clear, zip guns are 

 2 booby trap devices. They are man-made firearms 

 3 consisting of a pipe, a spring, a cotter pin, trip wire 

 4 and ammunition consisting of .12-gauge shotgun rounds. 

 5 When an unsuspecting individual such as a law 

 6 enforcement officer attempting to effectuate a lawful 

 7 arrest walks into one of them, the cotter pin is pulled 

 8 and the weapon fires. 

 9 Edward and Elaine Brown's garage included the 

 10 elements of zip guns in the process of being made and 

 11 finished. But the garage wasn't the only area used to 

 12 manufacture lethal weapons to use against law 

 13 enforcement. The basement, as you saw during the course 

 14 of the testimony, was also utilized by Ed and Elaine 

 15 Brown and their supporters. 

 16 So, next to enough food and alcohol and dry 

 17 goods to last a very long time were parts for the 

 18 manufacture of zip guns. The zip guns were located next 

 19 to extra parts for pipe bombs. And yet, ladies and 

 20 gentlemen, did this actually make you wonder, seeing 

 21 this picture, did it make you wonder why Ed and Elaine 

 22 Brown and their supporters would actually need more 

 23 parts for pipe bombs? As if 21 pipe bombs, all located 

 24 in their master bedroom, weren't already enough. 21 

 25 pipe bombs weren't enough for Ed and Elaine, and there 

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 1 would never be enough pipe bombs available to Ed and 

 2 Elaine because they and their supporters wanted action. 

 3 It's exactly what they wanted. What better way to 

 4 advertise your cause than to engage in a bloody and 

 5 deadly battle with law enforcement. 

 6 They and their co-conspirators intended to use 

 7 every weapon available against law enforcement, 

 8 including IED's, improvised explosive devices, which you 

 9 also heard referred to as Goex can bombs. They would 

 10 use IED's with nails and ones without nails. They kept 

 11 the IED's throughout their house, in their bedroom, in 

 12 the safe in the master bedroom, and the library hallway 

 13 overlooking the foyer, in the laundry room, even in 

 14 Elaine's kitchen jelly cabinet. Whatever it took, 

 15 ladies and gentlemen, they were not going to surrender. 

 16 And yet, as if the litany of pipe bombs and 

 17 IED's weren't enough, Ed and Elaine Brown fortified 

 18 their residence with every conceivable firearm 

 19 imaginable. The house was a virtual armory of deadly 

 20 firearms, and the weapons were strategically positioned 

 21 at windows so they could be used against law 

 22 enforcement. 

 23 Do you recall that when Assistant United 

 24 States Attorney Huftalen asked Deputy Marchegiana one of 

 25 the very last questions of his testimony, Mr. Huftalen 

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 1 placed up this photograph on the screen, and then he 

 2 asked Deputy Marchegiana where he was in relation to the 

 3 house, and Deputy Marchegiana's testimony was he was 

 4 approximately 80 yards away from the house. What Deputy 

 5 Marchegiana didn't know then but what you absolutely 

 6 know now is that covering Deputy Marchegiana's position 

 7 was a .50-caliber firearm. This is the firearm, ladies 

 8 and gentlemen, which you heard is capable of firing up 

 9 to three miles. A weapon which would blow a human body 

 10 apart. But this wasn't the only firearm utilized by Ed 

 11 and Elaine Brown. 

 12 Along with the .50-calibers was a Vanguard 

 13 .308-caliber rifle, a Ruger rifle, a .12-gauge shotgun, 

 14 all located in their bedroom in close proximity to the 

 15 most advantageous point, the French doors next to Mr. 

 16 Teddy Bear. And ladies and gentlemen, if Ed and Elaine 

 17 Brown needed ammunition, their residence was well 

 18 stocked. You certainly heard that. They had over 

 19 60,000 rounds of ammunition at their disposal, an amount 

 20 which was shocking to law enforcement, but what Ed Brown 

 21 characterized when he testified yesterday, he testified 

 22 that that was moderate by today's standards. 60,000 

 23 rounds might be moderate based upon who Ed and Elaine 

 24 Brown hang out with, but that much ammunition should be 

 25 horrifying to anyone else. 

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 1 With respect to the firearms, ladies and 

 2 gentlemen, defense counsel did something interesting. 

 3 They did this with numerous law enforcement witnesses. 

 4 They attempted on cross-examination to infer that law 

 5 enforcement officers the night of Ed and Elaine Brown's 

 6 arrest on October 4th moved those weapons closer to the 

 7 window. Do you honestly think that these highly trained 

 8 law enforcement officers that night as they were walking 

 9 around the residence looking at 21 pipe bombs, 21 IED's, 

 10 more ammunition than they could ever count, it actually 

 11 occurred to them that this isn't enough evidence? We 

 12 better put some of these firearms that we see here 

 13 closer to the window. It's a ludicrous and preposterous 

 14 allegation. But the tables couldn't be turned for long, 

 15 ladies and gentlemen, because while on cross-examination 

 16 counsel for Edward and Elaine Brown were trying to lay 

 17 that inference, Ed Brown proudly stated yesterday that 

 18 he placed those weapons there. 

 19 Now, of course the testimony about what a 

 20 .50-caliber can do to a human being was shocking and 

 21 startling. But everything in Ed and Elaine Brown's 

 22 residence was shocking and startling. And if you think 

 23 what a .50-caliber weapon can do to a human body, if you 

 24 think that that's shocking? What do you think an IED 

 25 could do to the same body. And how do you think a human 

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 1 being could ever survive being hit by or even being near 

 2 one of those pipe bombs that was in their bedroom. You 

 3 saw the enormous chemical reaction from a small 

 4 cannister of Tannerite. You saw it. Defense counsel 

 5 admitted that video tape into evidence. Don't you think 

 6 that an explosion from a GOEX can with nails taped to it 

 7 would make that Tannerite explosion seem like a mere 

 8 firecracker in comparison? 

 9 MR. IACOPINO: Your Honor, I object. There's 

 10 a slide show going on. There's no way for that to be 

 11 reflected in the record. She's not referencing these 

 12 exhibits that are being put up on the screen, and 

 13 there's no way for the record to reflect what's being 

 14 shown to the jury. 

 15 MS. OLLILA: I'll reference each exhibit, your 

 16 Honor, as I go along. 

 17 THE COURT: All right, she will do that. 

 18 MS. OLLILA: So ladies and gentlemen, it is 

 19 clear that Ed and Elaine Brown worked together to 

 20 accomplish this feat. But did they actually have 

 21 supporters and how do you know? 

 22 You know from the testimony that after the 

 23 return of the tax return evasion indictment, Ed and 

 24 Elaine Brown needed firearms and they had plenty of 

 25 money to obtain them. You know this because Deputy 

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 1 Berry and Deputy Nunes both testified that they 

 2 accompanied members of the probation department to Ed 

 3 and Elaine Brown's residence on May 24th when Ed and 

 4 Elaine Brown had to turn over weapons. 

 5 Elaine Brown brought the deputies through the 

 6 house and she also brought them into the master bedroom 

 7 to an area where the safe was. She turned the 

 8 combination lock and opened the safe. What was in the 

 9 safe? A cube of money that both Deputy Berry and Deputy 

 10 Nunes testimony was about 12 inches high and 12 inches 

 11 wide. And you know that the money was left at the 

 12 residence. They both testified that no one touched the 

 13 money. 

 14 It is clear, then, that Ed and Elaine Brown 

 15 needed firearms and had plenty of money to obtain them, 

 16 yet their problem was that if they left the property, 

 17 they risked being apprehended by members of the United 

 18 States Marshal Service, so they recruited supporters. 

 19 Dena, please bring up 25. Supporters like Danny Riley. 

 20 Dena, please bring up Government's Exhibit 26. 

 21 Supporters like Cirino Gonzalez. And Dena, please bring 

 22 up 26a. And supporters like Jason Gerhard. They 

 23 recruited these supporters to bring them weapons. The 

 24 most obvious evidence of the presence of supporters like 

 25 Danny Riley and Cirino Gonzalez and Jason Gerhard lies 

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 1 with the very firearms that were taken from Ed and 

 2 Elaine Brown's residence after they were arrested, after 

 3 their October 4th arrest. 

 4 You heard that Jason Gerhard, who lived in 

 5 Brookhaven, New York, was a staunch supporter of Ed and 

 6 Elaine Brown and was frequently at their home. 

 7 You heard in the testimony of Deputy Berry and 

 8 Deputy Nunes that Jason Gerhard got into a motor vehicle 

 9 accident on July 17th while driving Elaine Brown's motor 

 10 vehicle. 

 11 You also heard that the United States Marshal 

 12 Service seized Elaine Brown's car that night on 

 13 July 17th, and Jason Gerhard was not happy about that. 

 14 What did he do? He traveled the very next day on 

 15 July 18th to the Lebanon Police Department in order to 

 16 fill out a report of a theft. 

 17 Once there he met with Deputy Berry and Deputy 

 18 Nunes. And what did he tell them? He told them that 

 19 their attempt to arrest Ed and Elaine Brown was a 

 20 violation of the Constitution, constituted treason and 

 21 was punishable by death. 

 22 You also heard that two days after that 

 23 confrontation Jason Gerhard was stopped by Trooper Shawn 

 24 Harrington while he was in Charlestown, New Hampshire, 

 25 about 20 to 25 minutes from Plainfield. He approached 

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 1 Jason Gerhard, and what he saw in the back seat of Jason 

 2 Gerhard's vehicle was this weapon, Government's Exhibit 

 3 5a-2. 

 4 You know that Jason Gerhard on that night, 

 5 July 20, 2007, had earlier purchased that weapon from 

 6 Albert Lindquist from the Alstead Gun Shop. You know 

 7 that because Albert Lindquist testified and showed the 

 8 paperwork for the purchase of the weapon. Dena, please 

 9 pull up Government Exhibit 13g on page one. The 

 10 paperwork shows that Jason Gerhard of Brookhaven, New 

 11 York, purchased two firearms, both Sturm Rugers, on 

 12 July 20th, 2007. 

 13 When law enforcement searched the residence of 

 14 Edward and Elaine Brown after they were arrested on 

 15 October 4th, they discovered the very same weapon that 

 16 Trooper Harrington saw in Jason Gerhard's vehicle. They 

 17 also recovered this Sturm Ruger. Both of these weapons 

 18 were located in the den cabinet, and both of the 

 19 firearms were purchased by Jason Gerhard at the Alstead 

 20 Gun Shop. 

 21 Dena, please pull up 30a-56. 

 22 Jason Gerhard also purchased the Bushmaster 

 23 semi-automatic assault weapon from the Alstead Gun Shop. 

 24 You know this because John DiBernardo, just like Albert 

 25 Lindquist, who also worked at the gun shop testified 

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 1 about the purchase. 

 2 And yet perhaps the most deadly of all the 

 3 firearms purchased by Jason Gerhard for Ed and Elaine 

 4 Brown was this .50-caliber Serbu. Jason Gerhard 

 5 purchased the .50-caliber from the Alstead Gun Shop and 

 6 John DiBernardo was the clerk who handled the 

 7 transaction. 

 8 But as you heard, ladies and gentlemen, Jason 

 9 Gerhard wasn't the only supporter buying .50-caliber 

 10 firearms for Ed and Elaine Brown. Cirino Gonzalez from 

 11 Alice, Texas, and Danny Riley from Cohoes, New York, 

 12 each traveled from their homes all the way to New 

 13 Hampshire in order to purchase a .50-caliber weapon, and 

 14 you know this because you heard the testimony from 

 15 Richard Tatem at the Stone Eagle Gun Shop. 

 16 Please pull up Exhibit 2 at page two. No, 

 17 Dena, that's the wrong one. I'm sorry, you're correct. 

 18 The e-mail traffic between Danny Riley and 

 19 Cirino Gonzalez proves this point perfectly clear, 

 20 doesn't it? Look at Exhibit 2. It is an e-mail to 

 21 Cirino Gonzalez, and it discusses the purchase of a 

 22 .50-caliber Serbu, a manufacturer of .50-caliber 

 23 weapons. In the e-mail Danny Riley tells Cirino 

 24 Gonzalez, when he let's me know when they arrive, I will 

 25 go to Newport, New Hampshire and get it and then come to 

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 1 you with it. I think you only need one for the house 

 2 unless you want one for your personal collection. 

 3 You know from the testimony of Richard Tatem, 

 4 the owner of Stone Eagle, that both Danny Riley and 

 5 Cirino Gonzalez picked up a .50-caliber. You have them 

 6 here. They're the two black .50-caliber weapons. 

 7 Now, when you ask yourselves whether the 

 8 evidence demonstrates that Ed and Elaine Brown recruited 

 9 supporters, ask yourself this. Does it really strike 

 10 you that the likes of Danny Riley and Cirino Gonzalez 

 11 and Jason Gerhard actually had the financial means to 

 12 purchase all of this weaponry? Danny Riley spent a lot 

 13 of time in Plainfield, New Hampshire. 13e-1, please, 

 14 Dena. 

 15 Does it strike you that Danny Riley or Jason 

 16 Gerhard could spend $2,320 for a .50-caliber weapon? A 

 17 weapon that -- 

 18 MR. IACOPINO: Objection, your Honor, there's 

 19 no evidence about Danny Riley's financial circumstances 

 20 in the record. 

 21 THE COURT: Overruled. 

 22 MS. OLLILA: A weapon that they would then 

 23 leave behind at Ed and Elaine Brown's residence. The 

 24 testimony made it abundantly clear that Ed and Elaine 

 25 Brown could afford to do so, although Elaine Brown was 

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 1 the only Brown employed. She made a lot of money as a 

 2 dentist. 

 3 MR. IACOPINO: Objection. Not in the record. 

 4 THE COURT: Overruled. 

 5 MS. OLLILA: Throughout the trial you had 

 6 certainly seen some of the money that they had at their 

 7 residence. You heard about the money, the cube of money 

 8 contained in the safe in May 2006, and you saw some of 

 9 the money located in the master bedroom at the time of 

 10 the search after their arrest on October 4th. 

 11 Please pull up 30a-53, Dena. And you found 

 12 out yesterday through defendant Ed Brown what was 

 13 located in the elevator shafts. $101,000 in U.S. 

 14 currency. 

 15 So, ladies and gentlemen, don't you think it's 

 16 obvious that Elaine Brown, through her dental practice, 

 17 could have financed the entire buildup of arms in order 

 18 to drive off law enforcement? 

 19 Ed and Elaine Brown and their supporters never 

 20 intended to have this end peacefully. They wanted 

 21 guerrilla warfare. Yet throughout the trial what they 

 22 have done is try to recast the die and somehow claim 

 23 that they only took up arms after the Danny Riley 

 24 incident on June 7th when members of the United States 

 25 Marshal Service Special Operations Group attempted and 

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 1 planned to arrest defendant Edward Brown at the end of 

 2 the driveway while he was picking up his mail. They 

 3 were then going to negotiate for the peaceful surrender 

 4 of Elaine Brown. 

 5 The evidence of their theory that the only 

 6 time they were going to pick up arms was after June 7th 

 7 because they were so afraid after June 7th. The 

 8 evidence you've seen, the paper evidence, ladies and 

 9 gentlemen, disproves this argument in its entirety. 

 10 The events of June 7th also prove this. On 

 11 June 7th when Deputy Marchegiana was secreted in the 

 12 wood line, Ed Brown was patrolling the woods with poor 

 13 Zoe. As he was patrolling the woods, he had his Colt in 

 14 his hand, and he had this SA 85 strapped around his 

 15 shoulder. 

 16 If Ed Brown and Elaine Brown only took up arms 

 17 after June 7th, then how was it that Ed Brown on that 

 18 very day already had weapons at the residence? 

 19 And what about the testimony of Deputy Recor, 

 20 Deputy Ed Recor. His testimony was chilling. He was 

 21 the deputy who testified that after Danny Riley was 

 22 tasered on June 7th, he heard activity at the residence. 

 23 And within 10 to 15 minutes of hearing activity, he saw 

 24 defendant Ed Brown in the tower. And what did Ed Brown 

 25 have with him? He had a .50-caliber firearm and a box 

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 1 of ammunition which Deputy Recor said he put on the 

 2 wall. 

 3 If Ed and Elaine Brown only took up arms after 

 4 June 7th because they were so afraid, how in the world 

 5 could Ed Brown miraculously have obtained a .50-caliber 

 6 weapon within moments of the Danny Riley taser incident. 

 7 And if they were so petrified after June 7th, then why 

 8 did they have Ed and Elaine's jamboree on June 23rd, a 

 9 few weeks later, and allow men, women and children, as 

 10 many men, women and children as could arrive, they 

 11 allowed on to their property. 

 12 But you certainly know that Ed and Elaine 

 13 Brown had weapons before June 7th because the testimony 

 14 of Shane McDonald, the RE/MAX franchise owner, made that 

 15 much clear. He testified that he went to their 

 16 residence on May 21st, 2007, two and a half weeks before 

 17 June 7th, because he wanted to negotiate the terms of a 

 18 lease for Elaine Brown's dental practice on Glen Road in 

 19 West Lebanon. While at the residence he saw Ed Brown 

 20 with a gun in his waist. And Shane McDonald was a funny 

 21 witness. He said he sat down at the dining room table 

 22 and he figured Ed Brown had a better negotiating 

 23 position because Ed Brown put the gun on the table. 

 24 What Shane McDonald also testified to was that as he sat 

 25 there he saw Reno, Cirino Gonzalez, please put up 26, a 

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 1 short distance away in the kitchen with a weapon under 

 2 his arm. It was at this point, according to the 

 3 testimony of Shane McDonald, that he started to think he 

 4 might not have made a good decision. 

 5 Don't you think it was obvious, ladies and 

 6 gentlemen, from the testimony of Shane McDonald, that 

 7 the reason Reno, Cirino Gonzalez, was there, was to 

 8 protect Ed and Elaine Brown from being taken into 

 9 custody by law enforcement? And you know that Ed Brown 

 10 had that pistol described by Shane McDonald because he 

 11 purchased it -- Dena, please bring up 32m-1, he 

 12 purchased it on April 9th, 2007, two months before the 

 13 June 7th Danny Riley incident. And claiming that the 

 14 weaponry were only purchased after the Danny Riley 

 15 incident is also disproved by the fact that the 

 16 .50-caliber purchased by Danny Riley was purchased on 

 17 May 23rd, 2007, in Newport, New Hampshire, two weeks 

 18 prior to June 7th. Please bring up 13e-1, Dena. And 

 19 claiming that the weaponry and the firearms were 

 20 purchased by the likes of Cirino Gonzalez only after 

 21 June 7th in order to protect themselves is certainly 

 22 disproved by the fact that Cirino Gonzalez, just like 

 23 Danny Riley, purchased that .50-caliber on May 23rd, two 

 24 weeks prior to June 7th. 

 25 Please bring up 13f-1. 

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 24 

 1 So why would Danny Riley and why would Cirino 

 2 Gonzalez travel from their residences in New York and 

 3 Texas, two weeks before June 7th, to purchase $5,000 

 4 worth of firearms if they didn't have every intention of 

 5 using them to protect their leaders. Their leaders were 

 6 Ed and Elaine Brown. It's precisely what they were 

 7 doing. The purchase of firearms was all about their 

 8 desire to engage in an armed battle with the United 

 9 States Marshal Service on behalf of Ed and Elaine Brown. 

 10 But, try as they might, Ed and Elaine Brown just can't 

 11 hide from the facts -- please pull up 30a-66, Dena -- 

 12 facts that demonstrate that the Bushmaster was purchased 

 13 by Jason Gerhard -- please bring up 13c, page two -- on 

 14 January 21st, 2007. Almost five months before Danny 

 15 Riley ever even dreamed of walking down the driveway 

 16 with Zoe to pick up the mail. Why would Jason Gerhard 

 17 travel from Brookhaven, New York, all the way to New 

 18 Hampshire five months before? He wouldn't. Just like 

 19 Danny Riley and Cirino Gonzalez, he was doing it because 

 20 he wanted to go to war, shoulder to shoulder, with Ed 

 21 and Elaine Brown. 

 22 This has nothing to do with Ed and Elaine 

 23 Brown's supposed fears after June 7th. It has 

 24 everything to do with the fact that Ed and Elaine Brown 

 25 thought themselves worthy of disregarding the law, and 

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 25 

 1 they thought themselves worthy of disregarding the 

 2 jury's verdict as if it never existed. 

 3 The testimony also clearly established that 

 4 the Tannerite at the residence was ordered on May 28, 

 5 2007, 10 days before June 7th. 2d, please, Dena. Look 

 6 at the Government's Exhibit 2d. It's an e-mail from 

 7 Danny Riley to Cirino Gonzalez and it's dated May 28th 

 8 with the subject text kaboom. The e-mail demonstrates 

 9 the purchase of 50 pounds of explosives, Tannerite. You 

 10 know that the Tannerite ultimately ended up at Ed and 

 11 Elaine Brown's residence because the boxes with the 

 12 shipping labels containing Danny Riley's name and his 

 13 residence were located at the residence of Ed and Elaine 

 14 Brown after they were arrested in October. 

 15 But what else does the e-mail state? The 

 16 e-mail again sent ten days before June 7th says the 

 17 following. Turn to page two, please, Dena, and enlarge 

 18 that. Reno, I sent for 50 pounds of brown Skinnerite. 

 19 Hopefully it will be here when the other gear arrives. 

 20 If Ed and Elaine Brown only really wanted to 

 21 defend themselves after June 7th, what is he talking 

 22 about when he references when the other gear arrives? 

 23 And what about when he says, was Ed happy that 

 24 we are making progress? What progress is Danny Riley 

 25 referring to? 

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 26 

 1 Please go to 2e, page two, Dena. How about in 

 2 another e-mail which Danny Riley sends to Cirino 

 3 Gonzalez, he says, are you guys scoped up? This e-mail 

 4 was sent on May 30th, one week prior to June 7th. 

 5 Scoped up for what, ladies and gentlemen? 

 6 The progress that Danny Riley was referring to 

 7 has everything to do with the literature found in the 

 8 residence of Edward and Elaine Brown. The literature 

 9 speaks volumes about the beliefs of Ed and Elaine Brown. 

 10 And here are just a few of their books. Government's 

 11 Exhibit 33a-6. Guerilla Warfare and Special Forces 

 12 Operations. Government Exhibit 33a-7. Unconventional 

 13 Warfare Devices and Techniques. Government's 

 14 Exhibit 33a-2. Unconventional Warfare Devices and 

 15 Techniques Incendiaries. Government's Exhibit 33a-8. 

 16 Booby Traps. Government's Exhibit 33a-3. The Anarchist 

 17 Handbook. 

 18 In Government Exhibit 33a-6 entitled Guerilla 

 19 Warfare and Special Forces Techniques, just page five in 

 20 this book alone so perfectly describes exactly what Ed 

 21 and Elaine Brown are all about, what they and their 

 22 supporters are all about. And this is what some of the 

 23 words say. 

 24 Resistance. Resistance is defined as the act 

 25 of opposition of one individual or group to another. A 

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 27 

 1 resistance movement is the organized element of a 

 2 disaffected group which resists a government or 

 3 occupying power with means varying from passive to 

 4 violently active. Resistance movements begin to form 

 5 when dissatisfaction occurs among strongly motivated 

 6 individuals who cannot further their cause by peaceful 

 7 and legal means. 

 8 These words, ladies and gentlemen, and so, so 

 9 many more epitomize what they wanted. They wanted war. 

 10 So any new argument that the accumulation of 21 pipe 

 11 bombs, 20 IED's, deadly firearms, over 60,000 rounds of 

 12 ammunition, all accumulated in a short period of time, 

 13 is an attempt to engage in revisionist history in any 

 14 way possible to justify what they were doing. 

 15 Please go to Government 2i, page two, Dena. 

 16 Danny Riley made the point so clearly on August 4th when 

 17 he said, no one realizes it's militia time. And he also 

 18 said oh yeah, I forgot, the number one most important 

 19 thing, people should come and make a stand to their 

 20 death. Edward and Elaine Brown's stand and the stand of 

 21 their supporters, their grand stand included the use, 

 22 please pull up 39a-4, Dena, included the use of bombs 

 23 with nails taped to them, which is exactly why Danny 

 24 Riley's e-mail to his supporters, pull up 2i again, 

 25 Dena, and enlarge, which is exactly why Danny Riley's 

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 28 

 1 e-mail to all their supporters requested, among a litany 

 2 of additional other information and materials, roofing 

 3 nails, bigger, better. 

 4 Make no doubt about it, though, ladies and 

 5 gentlemen. Ed and Elaine Brown intended to survive. 

 6 The nature of their character, which included a pulpit 

 7 in their own living room, please pull up 4f, Dena, 

 8 included a pulpit in their living room, the nature of 

 9 their character wouldn't allow for anything less but 

 10 their survival. 

 11 So while Danny Riley was sending out e-mails 

 12 imploring supporters to wage battle to their death, Ed 

 13 and Elaine Brown were busy fortifying all those places 

 14 in their residence where they were likely to be. 

 15 Their bedroom is a great example. 30a-47, 

 16 please. In one closet in their bedroom were two helmets 

 17 and two air cannisters, air tanks. 30a-46, please. 

 18 30a-50. And 30a-51. In Ed and Elaine Brown's changing 

 19 room off the master bedroom were two bulletproof vests. 

 20 30a-42. Every single one of the pipe bombs were located 

 21 in their master bedroom. 

 22 And the firepower present in their bedroom was 

 23 shocking. 30a-31. 30a-62. Even Ed and Elaine Brown's 

 24 master bathroom was equipped with a built-in tub and an 

 25 Enterprise Arms gun positioned close to the window. If 

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 29 

 1 you got stuck in the bathroom there was a wooden crate 

 2 under that table, please large that, that had plenty of 

 3 extra ammunition available. 

 4 In order to get to the den where Ed and Elaine 

 5 Brown would have wanted to watch themselves on TV during 

 6 the nine-month standoff, you'd have to walk through the 

 7 library hallway. 30a-67. And 30a-72. And if the 

 8 Bushmaster firearm or the Benelli shotgun weren't enough 

 9 firepower for them, 30a-68, they could turn to one of 

 10 the seven improvised explosive devices on the library 

 11 shelf. 30a-61. The den itself came equipped with 

 12 plenty of firepower. Conveniently located next to the 

 13 TV clicker was another gun. 30a-59. 30a-75. And who 

 14 could actually get any exercise without the presence of 

 15 a .50-caliber sniper weapon at your disposal. 

 16 Elaine Brown also thought enough to have 

 17 detonation cord on her kitchen counter. Do you remember 

 18 when Ken Erickson testified about detonation cord? He 

 19 testified it was right next to a fruit bowl on the 

 20 kitchen counter. Detonation cord, ladies and gentlemen, 

 21 is what he said burns at 26,000 feet per second. 

 22 But let's address the issue which counsel for 

 23 Elaine Brown has raised. He made it a theme to point 

 24 out that Elaine Brown's fingerprints weren't on any of 

 25 the IED's or any of the bombs. But did this actually 

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 30 

 1 surprise you? Because it shouldn't have surprised you. 

 2 Wasn't it clear that Elaine Brown's crucial role, not 

 3 her only role, but her crucial role was to be the bread 

 4 winner, to bring in the cash, to finance the entire 

 5 operation. And wasn't it clear that Ed Brown's role, 

 6 his primary role and the primary role of his supporters 

 7 was to actually make the IED's and the pipe bombs all 

 8 along while Elaine was cleaning teeth. In the same 

 9 vein, doesn't it make sense that Elaine Brown wouldn't 

 10 have any IED's or pipe bombs or semi-automatic assault 

 11 weapons lying around for dental patients to see. What 

 12 better way to scare off the dental patients than to have 

 13 an IED in the same room. It wouldn't have happened. 

 14 It makes sense, ladies and gentlemen. Ed and 

 15 Elaine Brown believed that they were in this for the 

 16 long haul. That's what they planned. They couldn't 

 17 possibly survive unless Elaine Brown kept the money 

 18 trail flowing. 

 19 That's exactly why the undercover team was 

 20 allowed into their home during the night of October 4. 

 21 They had just successfully recovered a lot of the items 

 22 from Elaine Brown's dental practice on Glen Road. They 

 23 broke in. The undercover team was welcomed as heroes to 

 24 Ed and Elaine Brown because they had just staged a 

 25 successful coup which meant that the flow of money and 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 30 of 102
 31 

 1 therefore the continuation of their cause would live. 

 2 Why else were they celebrating on the porch with pizza 

 3 and beer? 

 4 So don't be sidetracked by any claim that poor 

 5 old Elaine was just a cog in the wheel. She was the 

 6 wheel that kept this conspiracy spinning. 

 7 And could Elaine Brown actually be claiming 

 8 that the actions of her husband and the actions of the 

 9 co-conspirators weren't reasonably foreseeable to her? 

 10 MR. LANGE: Objection, it's burden shifting. 

 11 THE COURT: Overruled. 

 12 MS. OLLILA: Was it puzzling to you, ladies 

 13 and gentlemen, when counsel for Elaine Brown questioned 

 14 two of the United States' witnesses about what was 

 15 contained in the other nightstand next to the master 

 16 bed. Although some of the witnesses, the witnesses 

 17 seemed somewhat puzzled by what counsel was doing, 

 18 counsel for Elaine Brown pushed on. Could Elaine Brown 

 19 actually be claiming that she had no knowledge of what 

 20 was going on in her very own home? One thing should 

 21 have been clear from the testimony of Ed Brown 

 22 yesterday. Elaine Brown did know what was going on in 

 23 her home. That's exactly why, when Ed Brown was asked 

 24 upon cross-examination by Mr. Huftalen, who brought the 

 25 SA 85, this weapon, into the home. Ed Brown let it slip 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 31 of 102
 32 

 1 out. What did he say? He said my wife will remember 

 2 who did that. When Ed Brown was asked whether or not 

 3 Elaine Brown knew about weapons in the residence during 

 4 their initial arrest in 2006, once again he didn't think 

 5 before he spoke. He said of course she does. She knows 

 6 everything in the house. Of course she knows everything 

 7 in the house. Do you think that as Elaine Brown entered 

 8 the master bedroom to put the dust mop away, please 

 9 30a-45, or to even get her Yoga mat, 30a-40a, that she 

 10 would somehow miss the presence of a police flak jacket? 

 11 Hollow point ammunition. 30a-47, Dena. This 

 12 is the same hollow point ammunition which Ken Erickson 

 13 testified was used to kill big game. Think she'd miss 

 14 the military issue ballistic helmets, goggles, 

 15 pyrotechnic fuse, and two air cannisters? 30a-46, 

 16 please, Dena. And do you think that as Elaine Brown 

 17 laid in her bed in her nice linens, that she couldn't 

 18 see the pipe bombs and parachute flares and ammunition 

 19 stacked up on a baker's rack, 30a-40, less than ten feet 

 20 away from the edge of the bed on a closet which had no 

 21 door? Could it possibly be that Elaine Brown didn't see 

 22 the gas mask on her nightstand, 30a-57, or that when she 

 23 reached into her nightstand to get a candle, 30a-53, she 

 24 somehow missed the presence of a pocket smoke escaping 

 25 mask? Perhaps after Elaine Brown folded Ed Brown's 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 32 of 102
 33 

 1 clothing and put it away in the dresser drawer she 

 2 neglected to see the knife, flashlights and night vision 

 3 goggles. 30a-56. 

 4 Ladies and gentlemen, I submit this to you, 

 5 the real Elaine Brown is the very woman who had this 

 6 Glock with her in her hand the night of her arrest when 

 7 she was on the porch with the undercover team. That's 

 8 the real Elaine Brown. She's not a shrinking violet. 

 9 That much is clear. And you certainly heard from her 

 10 husband when he testified yesterday. She carried 

 11 firearms on her, had for a long time, and shot weapons 

 12 at the residence. 

 13 What do you think that the presence of the 

 14 military ballistic vests, two of them, the two military 

 15 ballistic helmets, the two air supply systems, 21 pipe 

 16 bombs, 13 IED's, five deadly firearms, and thousands of 

 17 rounds of ammunition all in the master bedroom meant? 

 18 What it meant was even Elaine Brown wasn't headed to 

 19 that bunker. She was going to stand arm and arm, hand 

 20 in hand with her husband Ed, and they were going to 

 21 fight. They were going to fight and kill law 

 22 enforcement all because they didn't want to be taken 

 23 into custody. 

 24 I submit this to you, ladies and gentlemen, 

 25 the real Elaine Brown is the very woman who yelled such 

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 34 

 1 vulgar profanities at the undercover team as soon as she 

 2 was arrested. She fell victim for a second time of a 

 3 ruse advanced by law enforcement. 

 4 Ladies and gentlemen, the battle that Ed and 

 5 Elaine Brown and their supporters wanted, never 

 6 happened, because the United States Marshal Service in 

 7 the District of New Hampshire had Ed and Elaine Brown's 

 8 number from the jump start. The United States Marshal 

 9 Service knew that Ed and Elaine Brown's cause would 

 10 eventually implode from within because it wasn't a cause 

 11 at all. 

 12 The United States Marshal Service knew that if 

 13 they acted with patience and deliberation they would 

 14 arrest their supporters one at a time and slowly close 

 15 the circle. 

 16 The United States Marshal Service also knew 

 17 that the fringe players would eventually fall away and 

 18 leave to either support another cause or simply drift 

 19 into the wind. 

 20 The battle they were looking for, the battle 

 21 they were hoping and praying for, never materialized. 

 22 The United States Marshal Service outsmarted 

 23 Ed and Elaine Brown and their supporters by a long shot 

 24 in every way and it is without a doubt that it must have 

 25 been incredibly difficult, but they prevailed, the 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 34 of 102
 35 

 1 United States Marshal Service prevailed. 

 2 The number one goal at all times of the 

 3 Marshal Service was to insure that no one, not the 

 4 Browns, not their supporters, and not law enforcement, 

 5 was harmed in any way, and that is exactly what 

 6 happened. 

 7 From the date that Ed and Elaine Brown decided 

 8 to play by their rules, the United States Marshal 

 9 Service engaged in an unwavering plan for a peaceful 

 10 resolution. At the end of the day the false beliefs 

 11 perpetuated by Ed and Elaine Brown fell flat because 

 12 they were up against the United States Marshal Service, 

 13 true professionals, exactly what you would expect them 

 14 to be. True professionals whose solitary aim was to 

 15 comply with their duty to apprehend Ed and Elaine Brown 

 16 in a peaceful manner. 

 17 Although, please pull up 1i, Dena, although it 

 18 took almost nine months, law enforcement never wavered 

 19 in their approach. Even in the bitter end. Law 

 20 enforcement officers who moments earlier had a loaded 

 21 weapon pointed at them, acted with professionalism, 

 22 generosity and humanity toward two individuals who would 

 23 have killed them in order to avoid apprehension. 

 24 Ladies and gentlemen, the evidence in this 

 25 case has established that Ed and Elaine Brown did 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 35 of 102
 36 

 1 everything in their power to forcefully resist, impede 

 2 and prohibit law enforcement officers from taking them 

 3 into custody. 

 4 The United States asks you return the only 

 5 verdicts consistent with the evidence in this case, and 

 6 those are verdicts of guilty. Thank you. 

 7 THE COURT: Thank you. I'll see counsel for 

 8 just a moment. 

 9 AT SIDEBAR 

 10 THE COURT: Are the defendants requesting any 

 11 curative instructions? 

 12 MR. LANGE: I think some of the government's 

 13 argument -- 

 14 THE COURT: I want to give you an opportunity. 

 15 MR. LANGE: -- was based on speculation, went 

 16 beyond what could be reasonably inferred from the 

 17 evidence. I'd just ask the court to instruct the jury 

 18 that what the lawyers say is not evidence. 

 19 THE COURT: I will do that in any event in my 

 20 closing instructions. 

 21 MR. LANGE: And they -- 

 22 THE COURT: I don't want to do that right now 

 23 because then it looks like I'm applying it to you. 

 24 Okay, so if you want, I'll do it, but I don't want it to 

 25 look bad. Okay, so you're not asking. Any other -- 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 36 of 102
 37 

 1 anything else? 

 2 MR. IACOPINO: I join in his request. 

 3 THE COURT: Anything else? 

 4 MR. IACOPINO: Nothing else. 

 5 THE COURT: Okay. That's it. 

 6 BEFORE THE JURY 

 7 THE COURT: All right, ladies and gentlemen, 

 8 we're going to take a ten-minute recess and then we will 

 9 hear additional closings. 

 10 Don't make up your minds. We have more to go. 

 11 Don't discuss the case. 

 12 I am told you have lunch. We're going to let 

 13 you eat. 

 14 (Jury exited the courtroom.) 

 15 THE COURT: All right, we're in recess. 

 16 (Recess at 2:00 p.m.) 

 17 BEFORE THE JURY 

 18 THE COURT: Mr. Lange, the jury will be 

 19 pleased to hear from you. 

 20 MR. LANGE: Good afternoon. 

 21 THE JURY: Good afternoon. 

 22 MR. LANGE: I'm not going to be long. I'm 

 23 going to ask you people to do what you took an oath to 

 24 do, which is very simply consider the evidence that's 

 25 presented here in the courtroom, apply your common sense 

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 38 

 1 to that evidence, and apply the instructions which come 

 2 from his Honor, the judge. That's what my client, 

 3 Elaine Brown, is entitled to, that's what you've agreed 

 4 to do. 

 5 This case should not be decided based on 

 6 eloquence or some theory of guilt by association or 

 7 character assassination. The case should be decided by 

 8 you people based on the evidence and on the law. 

 9 The question for you is what has the 

 10 government proven beyond a reasonable doubt. Beyond a 

 11 reasonable doubt is just what those words apply. It 

 12 applies the use of your common sense and your common 

 13 experience. 

 14 What has the government proven in this case 

 15 with regard to Elaine Brown, and you consider each 

 16 defendant separately, beyond a reasonable doubt. 

 17 Well, they have proved that she possessed 

 18 this. They have proven that beyond a reasonable doubt. 

 19 This is the Glock that she had when she was arrested at 

 20 her home on October 4th of 2007. They have not proven 

 21 beyond a reasonable doubt that she possessed the 

 22 firearms. There's lots of them there. 

 23 When you go back to the courtroom, you will 

 24 have the judge's instruction about what possession 

 25 means. It comports with your common sense. 

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 39 

 1 To possess something is to have actual 

 2 possession of it. There is no indication that Elaine 

 3 Brown actually possessed any of those formidable 

 4 firearms, all 17 of them, other than the pistol, and 

 5 that is a firearm, no question about it. 

 6 Possession can also include what is call 

 7 constructive possession. And that means you have the 

 8 power and intention to exercise control over something. 

 9 There is no sufficient evidence to prove that my client 

 10 had the power and intention to exercise control over 

 11 those firearms. And I'll try to explain to you, as 

 12 succinctly as I can, why that matters. 

 13 It is also abundantly clear that the 

 14 government has not met its burden to prove that she 

 15 possessed or used in furtherance of anything the 

 16 destructive devices, and I'll try to remember the 

 17 witness's name, I believe it's Michael Powell. He was 

 18 the explosives or ordnance enforcement officer from the 

 19 Bureau of Alcohol, Tobacco and Firearms. I asked him 

 20 very few questions, but you will recall one of the 

 21 things I asked him about was the Glock. I held the 

 22 Glock up, brought it up there, asked him if it's a 

 23 firearm, and he said yes, it's a firearm. I asked him 

 24 if it was a grenade or if it was a mine or if it was a 

 25 missile or if it was a rocket, a booby trap or something 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 39 of 102
 40 

 1 like that, and he said no. What he was telling you was 

 2 was that firearm was not a destructive device. 

 3 The Goex cans, destructive device. The what 

 4 has been called zip guns, destructive device, pipe bombs 

 5 may all be true, but the government has not linked those 

 6 items to my client. Yes, she knew about them. How 

 7 could she not. She lived in the same house with her 

 8 husband, but that does not mean that she had the 

 9 dominion and control over those items. 

 10 Now, the government was very eloquent in its 

 11 closing argument about remember how it was always Ed and 

 12 Elaine, Ed and Elaine, Ed and Elaine. Of course it's Ed 

 13 and Elaine. They are married. And it's abundantly 

 14 clear from the evidence that they were both convicted 

 15 across the hall back on January 18th of 2007. But she 

 16 was released. She went down to stay with her son David, 

 17 the fellow you heard from this morning, stayed there a 

 18 period of time, and then she went back. And that's one 

 19 of the counts in this case. It will be up to you to 

 20 decide whether that constitutes a crime. The judge will 

 21 explain those elements. I leave that to your common 

 22 sense and your good judgment. 

 23 She came back, she came back because she 

 24 missed her husband, and David the son described how much 

 25 happier she was back where she belonged. Home is the 

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 41 

 1 place you go where they have to take you in, and that's 

 2 where she went. 

 3 She had also been convicted of a felony as of 

 4 January 18, and she clearly, as I've already told you, 

 5 the evidence told you, what I tell you is not evidence, 

 6 what the prosecutor says is not evidence, we can comment 

 7 on it, you decide what the evidence is, she also 

 8 possessed the firearm after that conviction. Again, 

 9 that's one of the counts in this case. It will be up to 

 10 you to decide if the evidence supports a verdict in that 

 11 count. 

 12 You're going to be given a jury verdict form, 

 13 and basically you will work through it. The counts 

 14 about being a felon in possession, failure to appear at 

 15 sentencing, they are toward the end of the form. You 

 16 will have a form for each of the two defendants. 

 17 The government said, oh, Elaine in particular 

 18 is trying to justify the Glock because of what happened 

 19 with Danny Riley. You know what happened to Danny 

 20 Riley. He was tasered, he was shot at, he was taken 

 21 into custody. There was a show of force, multiple 

 22 cruisers, 170-odd law enforcement personnel, New 

 23 Hampshire National Guard. You know it was all there. 

 24 There is no evidence that prior to that date my client, 

 25 Elaine, had any firearms. You will decide whether the 

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 42 

 1 possession of firearms after that constitutes offenses 

 2 as indicated in Count Six, particularly in Count Six. 

 3 What I want to turn to now is what's a 

 4 conspiracy. And I submit to you that my client is not 

 5 guilty of conspiracy. A conspiracy is an unlawful 

 6 agreement to break the law. I submit to you what she 

 7 did when she went home is simply to do what she felt she 

 8 had to do as a loyal wife. I also submit to you that 

 9 she did not possess a firearm in furtherance of a 

 10 conspiracy, but that's the charge. 

 11 And even if she may have possessed a firearm, 

 12 you decide beyond a reasonable doubt that she possessed 

 13 a firearm in furtherance of a conspiracy. That's one of 

 14 the counts on the form. She certainly did not possess, 

 15 either directly, constructively, or in any other way, 

 16 shape or form, a destructive device. There is no 

 17 evidence that she had anything to do with putting those 

 18 Goex cans there, putting those pipe bombs there, putting 

 19 the zip gun cans there or installing the flash bang 

 20 Tannerite that was up in the trees. 

 21 So I'm going to end simply where I began. I 

 22 just ask you to do your jobs. I ask you to apply the 

 23 law to the evidence as you find it, and when you do 

 24 that, you will return a just and fair verdict as to my 

 25 client. Thank you. 

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 43 

 1 THE COURT: Thank you, Mr. Lange. Mr. 

 2 Iacopino. 

 3 MR. IACOPINO: Thank you, your Honor. Good 

 4 afternoon. 

 5 THE JURY: Good afternoon. 

 6 MR. IACOPINO: One of the hardest things I 

 7 think any criminal defense lawyer has to do is come 

 8 speak to juries at the end of the case and sort of tie 

 9 it altogether and explain to you why my client, a living 

 10 breathing human being, should be found not guilty. And 

 11 I always find refuge in talking about something the 

 12 judge will speak to you about, two things, actually, the 

 13 presumption of innocence and the burden of proof. 

 14 No matter what you believe about Edward 

 15 Brown's political beliefs and ideologies, no matter 

 16 whether you believe he's right or wrong with his 

 17 observations about the government, the tax system or the 

 18 court system, he still sits in this courtroom a living 

 19 breathing human being who enjoys the presumption of 

 20 innocence. 

 21 That means that he was innocent when he came 

 22 walking into this courtroom on the very first day. That 

 23 means he's innocent, as I don't know how many government 

 24 employees came up and testified against him, he's 

 25 innocent as he sat there and told you his side of the 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 43 of 102
 44 

 1 story. And he'll remain innocent even while the 

 2 government's very eloquent closing was given. He 

 3 remains innocent through my closing, and even through 

 4 the judge's charge to you, his instructions to you of 

 5 the law, and he remains innocent even as you go back 

 6 into that jury room back there, unless after 

 7 consideration of all the evidence, second point, you all 

 8 12 unanimously agree that the government has born the 

 9 burden of proof and that they've born that burden with 

 10 respect to each element of each charge beyond a 

 11 reasonable doubt. 

 12 That doesn't mean that it's he may have 

 13 committed these crimes, ladies and gentlemen. Doesn't 

 14 mean that he probably committed these crimes. Doesn't 

 15 mean that he possibly committed. The burden of proof is 

 16 much higher than that. It's proof beyond a reasonable 

 17 doubt. The judge will tell you it's not proof beyond 

 18 all doubt, but it's proof beyond a doubt based on 

 19 reason. And the government has failed to do that in 

 20 this case, despite the parade of witnesses, despite the 

 21 various exhibits that they have presented to you and, 

 22 well, through the court, have presented as evidence, 

 23 they have failed to carry that burden. 

 24 And we know that they've failed to carry that 

 25 burden because each of these offenses, or the burden 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 44 of 102
 45 

 1 that they carry with respect to each of these offenses, 

 2 is to prove not only that Edward Brown took some action, 

 3 but that he had some type of criminal intent. 

 4 The judge will tell you with respect to Counts 

 5 One and Two and a couple of the other ones, excuse me if 

 6 I don't have this all written down, but that for several 

 7 of these counts, but most particularly Counts One and 

 8 Two, Edward Brown must have acted willfully, in other 

 9 words, with a willful intent to commit a crime. The 

 10 judge will tell you that under our law, willfully means 

 11 to act voluntarily and intelligently and with the 

 12 specific intent that the underlying crime be committed. 

 13 That is to say, with bad purpose either to disobey or 

 14 disregard the law, and not to act by ignorance, accident 

 15 or mistake. 

 16 And with respect to Counts One and Two of this 

 17 indictment the government has to prove that Edward Brown 

 18 acted willfully. 

 19 The reason why the government can't do that 

 20 was told to you by Edward Brown himself, and I'll get to 

 21 that in a minute with respect to Counts One and Two. 

 22 But before we do that I want to go to the -- 

 23 some of the other counts first. I want to specifically 

 24 address with you the charge of failure to appear for 

 25 trial, which I believe against Ed Brown is count number 

Case 1:09-cr-00030-GZS Document 229 Filed 11/03/09 Page 45 of 102
 46 

 1 10 -- 9 in the indictment, and failure to appear for 

 2 sentencing with respect to Edward Brown is count -- it's 

 3 either 10 or 11, I don't have it specifically here. The 

 4 judge will tell you what the elements of those charges 

 5 are. One of them is that he has to act willfully also 

 6 for those charges. But also the judge will tell you 

 7 that the action in that case is that he must have 

 8 willfully failed to appear for trial, and then the 

 9 important words that you will hear in these 

 10 instructions, as required on January 12, 2007. 

 11 During the government's closing they put on 

 12 their little slide show and one of the exhibits that 

 13 they provided in the slide show is this one. It's 

 14 Exhibit 1a-2. This is the order setting the conditions 

 15 of release for Edward Brown for his tax trial. This is 

 16 the only piece of paper that gives you any evidence of 

 17 what Edward Brown was required to do when it came to 

 18 appearing for trial or even for sentencing. If you look 

 19 on this piece of paper, there is nothing in here that 

 20 sets a date. In fact, one of the check-offs has a place 

 21 for the court to actually write in a date and time to 

 22 appear. There's nothing there. It says as required. 

 23 And the government has provided no other piece of 

 24 evidence showing you that this defendant was ordered to 

 25 appear for court or on the day that he was there, 

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 1 ordered to come back the next day. Doesn't exist. 

 2 Doesn't exist in this case. He was never ordered to 

 3 appear. He was never required to appear because that's 

 4 how courts require things. They order it. And 

 5 likewise, there's no piece of paper that says he was 

 6 required to appear in April for sentencing. 

 7 You did see Exhibit 1c. They put that up in 

 8 their slide show during closing argument as well, a 

 9 bench warrant for the arrest of Edward Brown. Look at 

 10 it closely. It's not addressed to Edward Brown, ladies 

 11 and gentlemen. Not at all. It's addressed to the 

 12 United States Marshal. And there's no evidence that 

 13 you've heard that this was ever provided to Mr. Brown. 

 14 What you heard was that some time after sentencing a 

 15 letter may have been sent to him informing him that he 

 16 had been both tried and sentenced, but that is not an 

 17 order to appear in court for sentencing, nor is it an 

 18 order to appear at the trial. 

 19 The government has not met their burden, 

 20 ladies and gentlemen, when it comes to the charges of 

 21 failure to appear for trial against Ed Brown or failure 

 22 to appear for sentencing against Ed Brown. 

 23 As I indicated, I'm going to return in my 

 24 argument to Counts One and Two, the conspiracy counts. 

 25 That same criminal intent requirement is part of the 

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 1 government's burden of proof with respect to those two. 

 2 Two charges. Must act with a specific intent that the 

 3 underlying crime be committed with a bad purpose either 

 4 to disobey or disregard the law, not to act with 

 5 ignorance, accident or mistake. 

 6 And you heard the prosecutor ask you to draw a 

 7 lot of inferences in her closing argument to you. And 

 8 admittedly, nobody can know what somebody's intent is 

 9 because you're not them. Intent is a mental process. 

 10 But in this particular case, ladies and gentlemen, you 

 11 heard from Ed Brown. He came right up here and took the 

 12 witness stand and told you what his intent was. His 

 13 intent was to live. Not to commit a crime. 

 14 You may not like Ed Brown, you may not have 

 15 liked his behavior on the witness stand, but he told you 

 16 things that I'm sure you were surprised to hear. He 

 17 told you that he had weapons even before June 7th. Told 

 18 you he had three of them. He told you about things that 

 19 I'm sure the government was happy to have him testify 

 20 about because it really didn't help his case too much. 

 21 What do you take from that? You take from it even 

 22 though I don't like the guy, I've got to believe him. 

 23 He's willing to tell me the truth, even if it hurts his 

 24 case. And that's what he did. And he told you that 

 25 this started long before January 12th in his mind. He 

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 1 told you how when there was a siege at Waco he took the 

 2 step of calling up the United States Department of 

 3 Justice Attorney General's Office. Of course he did not 

 4 get Attorney General Janet Reno at the time. No, he got 

 5 somebody, some clerk somewhere who was tasked with 

 6 taking his suggestion. He told you how that made an 

 7 impression on him. He told you about Ruby Ridge. He 

 8 told you about the videos that they had of Waco and Ruby 

 9 Ridge in their home. 

 10 Well, that's the early nineties. But he also 

 11 told you that in 2004 his wife's dental practice was 

 12 beset upon by 30 agents. And he told you that there 

 13 were snipers there. And that was confirmed by Shawn 

 14 Farnsworth who had gone up on the hill to buy supplies 

 15 and saw the snipers setting up. This was to search 

 16 Elaine Brown's dental practice to download something 

 17 from her computer, something Ed Brown told you if they 

 18 had simply asked, we would have given it to them. That 

 19 informs Ed Brown's mental state for your purposes here 

 20 today, ladies and gentlemen. 

 21 And in 2006 this ruse that they used to arrest 

 22 him on the tax case, again, more agents, snipers, called 

 23 them in from other jurisdictions. One of those 

 24 deputies, though, told you, hey, I thought I could have 

 25 arrested him while he was doing yard work in April right 

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 1 in the backyard of the dental practice. I felt I could 

 2 have done that reasonably. 

 3 But that's not what happened. That's not what 

 4 informed Ed Brown. It wasn't one or two officers 

 5 saying, Ed, we have a warrant for your arrest, you have 

 6 to come with us. It was, again, 20 or 30 agents and 

 7 snipers in a ruse. That informs Ed Brown's mental 

 8 intent, ladies and gentlemen. 

 9 And then after he comes to court he's led to 

 10 believe, as he told you, that his wife would go with the 

 11 probation officers to get the guns out of the house. 

 12 Was that me? I'm sorry. 

 13 THE COURT: It's the microphone, malfunction. 

 14 You can move it out of the way. 

 15 MR. IACOPINO: Thank you, your Honor. Sorry, 

 16 that scared me. But it tells you that probation was 

 17 supposed to go with his wife into the house. The 

 18 marshals weren't supposed to go into the house until she 

 19 was there. But what did you hear. Not just from Ed, 

 20 but from the marshal who had come over from Vermont for 

 21 the second time. What did you hear? Oh yeah, we were 

 22 in the house before she got there. That's what we were 

 23 tasked to do. That, ladies and gentlemen, informed Ed 

 24 Brown's mental intent. That informed his mental state. 

 25 June 7, 2007, 174 law enforcement officers, 

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 1 armed personnel carriers, snipers, lethal and non-lethal 

 2 weapons, ghillie suits. That informed Ed Brown's mental 

 3 intent, ladies and gentlemen. 

 4 Having a concert or a get together and have 

 5 the Department of Homeland Security helicopter that you 

 6 saw in the video presented by Mrs. Brown buzzing for 4 

 7 to 5 hours, you heard that testimony, that informed 

 8 Edward Brown's mental state. That informed his intent, 

 9 ladies and gentlemen. 

 10 I suggest to you that's not too hard to 

 11 believe Ed Brown when he says to you I was not willfully 

 12 attempting to break any laws. I was trying to live. 

 13 They were going to kill me. I wanted to live. And 

 14 that's why I did what I did. That's why he got up on 

 15 the witness stand and told you that. Because it was 

 16 true. And if the government does not prove that he 

 17 acted willfully beyond a reasonable doubt, then you must 

 18 apply that second grade principle that I talked about, 

 19 the burden of proof. If they don't prove it, he's not 

 20 guilty. And if you find him not guilty on Counts One 

 21 and Two, ladies and gentlemen, you must necessarily by 

 22 law find him not guilty on Count Three, the use of a 

 23 firearm during a crime of violence. 

 24 Again, I'm going to feel like Randy Jackson 

 25 from American Idol. I want to keep it real here with 

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 1 you. Ed Brown was not polite on the witness stand. He 

 2 was not the most gentlemanly guy. He didn't take 

 3 direction well. But under our law he's still innocent 

 4 and you still have to give him the same consideration 

 5 that you would give to any other person who sat up there 

 6 and was polite and nice and took direction well. 

 7 And at the beginning of this trial I asked you 

 8 to make sure that you gave the Browns a fair shake. 

 9 That's one of the things that I mean about that. You 

 10 have to give him a fair shake, and that's one of the 

 11 ways that you have to do it. 

 12 A couple of other things I want to address. 

 13 The prosecutor suggests that Ed Brown recruited people. 

 14 And I will submit to you that the evidence of Ed Brown 

 15 recruiting anybody is thin, if it exists at all, and it 

 16 certainly does not rise to a level of proving something 

 17 beyond a reasonable doubt. 

 18 The government provided you with 

 19 communications of two gentlemen through e-mails. Those 

 20 communications did not come from Ed Brown. They didn't 

 21 come from Elaine Brown. There's absolutely nothing in 

 22 the evidence to suggest even how Dan Riley, Jason 

 23 Gerhard, this guy Reno Gonzalez, how they even met Mr. 

 24 Brown. The government has not presented you with any 

 25 evidence like that. So to suggest that he recruited 

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 1 them as some kind of conspiracy just doesn't carry 

 2 water. 

 3 The burden of proof is with the government, 

 4 ladies and gentlemen, and in order to properly put the 

 5 government to their burden I beseech you that you not 

 6 engage in the assumptions that Ms. Ollila asked you to 

 7 engage in. 

 8 She asked you to consider where would Danny 

 9 Riley get the money to buy a gun. Well, the government 

 10 didn't present any evidence to you of what Danny Riley's 

 11 wherewithal was. They didn't even let you know if he 

 12 had a job or not. All they did was show you his picture 

 13 after his arrest. Of course it's an after an arrest 

 14 photo. And from that picture she wants you to make an 

 15 assumption about his financial condition. Don't do it. 

 16 There's no evidence of it. Hold her to the burden of 

 17 proof. Don't let her get away with rhetorical 

 18 flourishes. 

 19 Another thing in the government's argument. 

 20 She tried to accuse the defense, the defense, everybody 

 21 at the back here, of recasting the die. In essence what 

 22 she did, she made what's called a straw man argument, 

 23 ladies and gentlemen. A straw man argument is an 

 24 argument like a scarecrow full of straw. It's easy to 

 25 beat down. And if you consider the argument made by the 

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 1 government, a lot of it was exactly that way. She would 

 2 exaggerate the things that she claimed were our claims, 

 3 and then beat them down. Don't fall for it. She's 

 4 asking you to assume things. The burden is right here, 

 5 and that burden is proof beyond a reasonable doubt on 

 6 every element, including the element that my client 

 7 acted willfully, with bad purpose, with the intent to 

 8 commit the underlying crime. 

 9 You have ample evidence that Edward Brown's 

 10 mental state was not that of somebody who was willfully 

 11 intending to commit a crime. He wanted to do one thing, 

 12 ladies and gentlemen, he wanted to live, and therefore 

 13 you should return verdicts of not guilty. 

 14 THE COURT: Thank you, Mr. Iacopino. Mr. 

 15 Huftalen. 

 16 MR. HUFTALEN: Thank you, your Honor. The 

 17 government and Mr. Iacopino agree on at least one thing. 

 18 Mr. Brown wanted to live. That's where we part company. 

 19 He wanted to live his way, and anybody who wouldn't let 

 20 him live his way, he'd kill. Period. 

 21 If the evidence in this case has not proven to 

 22 you beyond a reasonable doubt that the gentleman seated 

 23 at the back table, Mr. Brown, is guilty of the charges 

 24 in the indictment, nothing that I can say right now is 

 25 going to change your mind. 

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 1 So let's talk about Elaine Brown. Mr. Lange 

 2 spoke very clearly, very succinctly, and very 

 3 persuasively with respect to her possessing destructive 

 4 devices. When Judge Singal gives you the law, and he 

 5 will in a few minutes, listen carefully to what he says 

 6 about a conspiracy. I expect that what he'll tell you 

 7 is that a conspiracy is an agreement, spoken or 

 8 unspoken. I expect that he'll tell you that the 

 9 conspiracy does not have to be a formal agreement or 

 10 plan in which everyone involved sat down together and 

 11 worked out all the details. That's what a conspiracy is 

 12 in the law. Your common sense and the evidence in this 

 13 case will make it clear to you or have made clear to you 

 14 that she was a member of a conspiracy. She just was. 

 15 She financed it. She fed it. She cleaned up after it. 

 16 And she held a gun on some of the outsiders to protect. 

 17 She was a member of a conspiracy. She just plain was. 

 18 From that point Mr. Lange then went on and 

 19 talked about whether she possessed booby trap devices or 

 20 Goex cans with or without the nails, or pipe bombs, and 

 21 there's no evidence in this case that she touched any of 

 22 them, that she picked them up, that she held them, that 

 23 she built them, that she put them on the shelves. But 

 24 what there is in this case is a whole lot of evidence 

 25 that they were there. And there's a whole lot of 

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 1 evidence that she was there. She was there, they were 

 2 there, she saw them. 

 3 Mr. Brown admitted yesterday that he made the 

 4 pipe bombs. That he made the zip guns, spring guns, 

 5 booby trap devices, whatever you call it. That he put 

 6 the nails, the shrapnel, if you will, on the homemade 

 7 bombs, the IED's. He did all of that. He did it in 

 8 furtherance of his intention not to be taken into 

 9 custody. He did that in furtherance of the two 

 10 conspiracies that he's charged with. He did it to 

 11 hinder, to prevent, to obstruct by threats of violence 

 12 and otherwise, the U.S. Marshal Service from arresting 

 13 him on a lawful warrant. That's what he did. 

 14 I suspect, or I expect, that another part of 

 15 the law that Judge Singal is going to talk to you about 

 16 goes as follows: 

 17 If you find beyond a reasonable doubt that a 

 18 defendant, Mr. Brown, was guilty on the conspiracy 

 19 charged in Count One or Count Two, then you may also 

 20 find that defendant -- this defendant, Elaine Brown 

 21 rather, guilty of carrying and using or possessing a 

 22 firearm in connection with a crime of violence. It 

 23 sounds peculiar, but listen to the law as the judge 

 24 gives it to you. If Mr. Brown is guilty of carrying, 

 25 using, possessing the destructive devices in furtherance 

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 1 of, or the guns and firearms in furtherance of, and all 

 2 destructive devices are firearms, but all firearms 

 3 aren't destructive devices, you'll hear that too, if you 

 4 find that Mr. Brown and Mrs. Brown were in the 

 5 conspiracy, and if you find that Mr. Brown possessed, 

 6 carried or used the destructive devices in furtherance 

 7 of, and you find that it was, and listen carefully to 

 8 hear this, it was reasonably foreseeable to Mrs. Brown 

 9 that Mr. Brown would do this, that's it. She's guilty. 

 10 So listen carefully to the law. No one 

 11 nowhere, no one in this room, no one anywhere, I submit, 

 12 likes to sit in judgment of another human being. It's 

 13 an uncomfortable thing to do. It's a difficult thing to 

 14 do. But sometimes you have to look at the facts and you 

 15 have to say it is what it is, I'm sorry, but it is what 

 16 it is. And this is what you've seen since Tuesday of 

 17 last week. This. AUSA Ollila didn't exaggerate or 

 18 embellish the evidence in this case. You've seen it. 

 19 Some of it you'll touch. You will never forget it. 

 20 This case clearly, beyond all doubt, not just beyond 

 21 reasonable doubt, the evidence in this case clearly 

 22 proves beyond all doubt that Ed Brown, who was going to 

 23 kill anybody who came to arrest him, that's it, that's 

 24 the case. 

 25 We were here Tuesday, Wednesday, Thursday, 

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 1 Monday, Tuesday, but that's what it boils down to. You 

 2 all know it. And when you hear the instructions that 

 3 Judge Singal gives you, you will understand that whether 

 4 Elaine Brown touched, picked up, isn't the critical 

 5 point. The critical issue is, was it reasonably 

 6 foreseeable to her that he would, and I submit to you 

 7 that the evidence is beyond all doubt that it was 

 8 reasonably foreseeable. 

 9 I am holding this gun. Is it reasonably 

 10 foreseeable that I will hold this gun? It's an absurd 

 11 rhetorical question. 

 12 When you walk back in that room in a couple 

 13 minutes, or several minutes after you listen to Judge 

 14 Singal's instructions, you will take three things with 

 15 you. The facts which are spread all over this courtroom 

 16 and are inside your memory, your collective memory from 

 17 the witness stand, the law which you will get from Judge 

 18 Singal, and only from Judge Singal, the third most 

 19 important thing you will take back, or equally important 

 20 thing with no disrespect intended to the court, is your 

 21 common sense. You know exactly what went on here. And 

 22 although your heart may go out to some people who are 

 23 involved, the facts speak for themselves. Thank you 

 24 very much. 

 25 THE COURT: Thank you, Mr. Huftalen. 

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 1 MR. IACOPINO: Your Honor, may we approach 

 2 before you begin your charge? 

 3 THE COURT: Of course. 

 4 AT SIDEBAR 

 5 THE COURT: Before you do, counsel, you've 

 6 seen the revised jury verdict form. Does anyone have 

 7 any objection to that? 

 8 MR. LANGE: I have no objection to the form, 

 9 your Honor. 

 10 MR. HUFTALEN: No. 

 11 THE COURT: Now what can I do for you, Mr. 

 12 Iacopino? 

 13 MR. IACOPINO: Before you asked if we wanted 

 14 you to make curative instructions to the jury. I would 

 15 ask that you do so based on Mr. Huftalen's rebuttal 

 16 argument. He stated that Elaine Brown held a gun on 

 17 agents, and that really wasn't any evidence that I think 

 18 is even fairly in the record and I think that it would 

 19 be important for the court to remind the jury of that 

 20 fact. 

 21 THE COURT: Go ahead. 

 22 MR. HUFTALEN: W. S. William Robertson who was 

 23 the undercover said that she held the gun and covered 

 24 the two of us. 

 25 THE COURT: I'm going to let the jury decide 

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 1 what the facts are. That's a classic. Any other 

 2 requests for curative instructions? 

 3 MR. HUFTALEN: Not from the government. 

 4 MR. IACOPINO: Not right now. 

 5 MR. LANGE: Are you going to include in your 

 6 general instruction that what the lawyers say is not 

 7 evidence? 

 8 THE COURT: You'll see it in there. You have 

 9 it. We're going to take a ten-minute break before I 

 10 give them instructions. 

 11 BEFORE THE JURY 

 12 THE COURT: Ladies and gentlemen, we'll take a 

 13 ten-minute break and I'm going to give you jury your 

 14 instructions and then you're going to go deliberate. 

 15 Jury is excused for ten minutes. 

 16 (Recess taken.) 

 17 BEFORE THE COURT 

 18 THE COURT: Before we bring the jury in, 

 19 counsel, the clerk advises that counsel has agreed to 

 20 the redacted indictment. Is that correct? 

 21 MR. HUFTALEN: Government agrees. 

 22 MR. IACOPINO: Yes. 

 23 MR. LANGE: Yes, your Honor. 

 24 THE COURT: So that's what we will send in. 

 25 And are we ready for the jury? 

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 1 MR. IACOPINO: Yes. 

 2 MR. HUFTALEN: Yes. 

 3 THE COURT: Bring in the jury, please. 

 4 THE CLERK: Yes, your Honor. 

 5 BEFORE THE JURY 

 6 THE COURT: Members of the jury, I'll now give 

 7 you your final jury instructions. These instructions 

 8 will be in three parts. First, general rules that 

 9 define and control your duties as jurors. Second, 

 10 definitions of the elements of the offenses charged in 

 11 the indictment -- in other words, what the government 

 12 must prove to make its case. And third, some rules for 

 13 your deliberations in the jury room and the return of 

 14 your verdict. This is not going to be a memory contest. 

 15 I'm going to be sending a written copy of these 

 16 instructions with you into the jury room. 

 17 It is your duty to find all of the facts from 

 18 the evidence admitted in this case. To those facts you 

 19 must apply the law as I give it to you. The 

 20 determination of the law is my duty as the judge. It is 

 21 your duty to apply the law exactly as I give it to you, 

 22 whether you agree with it or not. You must not be 

 23 influenced by any personal likes or dislikes, opinions, 

 24 prejudices or sympathy. That means that you must decide 

 25 this case solely on the evidence and according to the 

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 1 law. You took an oath proposing to do so at the 

 2 beginning of a case. 

 3 You must follow all of my instructions and not 

 4 single out some and ignore others; they are all equally 

 5 important. You must not read into these instructions, 

 6 or into anything I may have said or done, any suggestion 

 7 as to what verdict you should return -- that is a matter 

 8 entirely for you to decide. 

 9 It is a cardinal principle of our system of 

 10 justice that every person accused of a crime is presumed 

 11 to be innocent unless and until his or her guilt is 

 12 established beyond a reasonable doubt. Presumption is 

 13 not a mere formality. It is a matter of the most 

 14 important substance. 

 15 The presumption of innocence alone is 

 16 sufficient to acquit a defendant unless you are 

 17 satisfied beyond a reasonable doubt of his or her guilt 

 18 after considering all of the evidence. The defendants 

 19 before you, Edward Brown and Elaine Brown, are entitled 

 20 to the benefit of that presumption and you are not to 

 21 convict any of them unless you are persuaded of that 

 22 defendant's guilt beyond a reasonable doubt. 

 23 In this case, the defendants are being charged 

 24 together because the government alleges that they both 

 25 participated together in certain conspiracies. But, in 

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 1 considering the evidence and reaching your verdicts, you 

 2 will have to give separate consideration of the case 

 3 against each defendant. Don't think of the defendants 

 4 as a group. It is your duty to consider the charges 

 5 against each defendant separately and to return a 

 6 separate verdict for each defendant on each count. That 

 7 means, for each count you must decide whether the 

 8 government has presented evidence proving that 

 9 particular charge beyond a reasonable doubt. 

 10 In a criminal case, the burden is at all times 

 11 on the government to prove guilt beyond a reasonable 

 12 doubt. The law does not require that the government 

 13 prove guilt beyond all possible doubt. Proof beyond a 

 14 reasonable doubt is sufficient to convict. The burden 

 15 never shifts to the defendant. It's always the 

 16 government's burden to prove each of the elements of the 

 17 crimes charged beyond a reasonable doubt. 

 18 If, after a fair and impartial consideration 

 19 of all the evidence, you have a reasonable doubt as to 

 20 the guilt of any one of the defendants on any particular 

 21 offense, it is your duty to acquit him or her of that 

 22 offense. On the other hand, if after a fair and 

 23 impartial consideration of all of the evidence, you are 

 24 satisfied beyond a reasonable doubt of any of the 

 25 defendants' guilt on a particular offense, you should 

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 1 vote to convict him or her of that offense. 

 2 A reasonable doubt does not mean a mere 

 3 possibility that the defendant may not be guilty; nor 

 4 does it mean a fanciful or imaginary doubt, nor one 

 5 based on groundless conjecture. It means a doubt based 

 6 upon reason. 

 7 Each of the defendants' guilt must be 

 8 established upon the evidence and the reasonable 

 9 inferences to be drawn from that evidence. The evidence 

 10 from which you are to decide what the facts are consists 

 11 of the sworn testimony of witnesses, both on direct and 

 12 cross-examination, regardless of who called the witness; 

 13 and the exhibits that have been received into evidence. 

 14 Although you may consider only the evidence 

 15 presented in the case, you are not limited in 

 16 considering that evidence to the bald statements made by 

 17 the witnesses or contained in the documents. In other 

 18 words, you are not limited solely to what you see and 

 19 hear as the witnesses testify. You are permitted to 

 20 draw from facts that you find to have been proven such 

 21 reasonable inferences as you believe are justified in 

 22 the light of common sense and personal experience. 

 23 That's something you do every day. There's nothing 

 24 magical about that. 

 25 There are two kinds of evidence: direct and 

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 1 circumstantial. Direct evidence is direct proof of a 

 2 fact, such as the testimony of an eyewitness. 

 3 Circumstantial evidence is indirect evidence, that is, 

 4 proof of a fact or chain of facts from which you could 

 5 draw the inference, by reason and common sense, that 

 6 another fact exists, even though that other fact hasn't 

 7 been proven directly. You remember I gave you just a 

 8 silly example of that. You're entitled to consider both 

 9 kinds of evidence. The law permits you to give equal 

 10 weight to both, but it is for you the jury to decide how 

 11 much weight to give to any evidence. 

 12 Now, during the course of this trial you heard 

 13 testimony from persons who claim special expertise in 

 14 certain areas. 

 15 People who, by education and experience, have 

 16 become expert in some field or developed a special 

 17 expertise may state their opinions on matters in that 

 18 field and may also state their reasons for the opinions. 

 19 Expert opinion testimony should be judged like 

 20 any other testimony. You may accept it or reject it or 

 21 give it as much weight as you think it deserves 

 22 considering the witness's education and experience, the 

 23 reasons given for the opinion, and all the other 

 24 evidence in the case. 

 25 Now, defendant Elaine Brown has a 

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 1 constitutional right not to testify, and no inference of 

 2 guilt, or of anything else, may be drawn from the fact 

 3 that she did not testify. For any of you to draw such 

 4 an inference would be wrong; and indeed, it would be a 

 5 violation of your oath as a juror. 

 6 Now, whether the government has sustained its 

 7 burden of proof does not depend on the number of 

 8 witnesses it has called or the number of exhibits it has 

 9 offered, but instead upon the nature and quality of the 

 10 evidence presented. You do not have to accept the 

 11 testimony of any witness if you find the witness is not 

 12 credible. Not believable. You must decide which 

 13 witnesses to believe and which facts are true. To do 

 14 this, you must look at all of the evidence, drawing upon 

 15 your common sense and personal experience. 

 16 In deciding what to believe, you may consider 

 17 a number of factors, including the following: The 

 18 witness's ability to see or hear or know the things to 

 19 which the witness testifies. The quality of the 

 20 witness's memory. The witness's manner while 

 21 testifying. Whether the witness has an interest in the 

 22 outcome of the case or any motive, bias or prejudice. 

 23 Whether the witness is contradicted by anything the 

 24 witness said or wrote before trial or by other evidence. 

 25 And how reasonable the witness's testimony is when 

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 1 considered in light of other evidence which you believe 

 2 to be true. 

 3 Again, you do that every day when you decide 

 4 who to believe and who not to believe. 

 5 Now, the evidence in this case includes facts 

 6 to which the lawyers have agreed or stipulated. You 

 7 remember a stipulation was read to you at some point 

 8 during the trial. A stipulation means simply that the 

 9 government and the defendants accept the truth of a 

 10 particular fact. Since there's no disagreement, there 

 11 is no need for evidence apart from the stipulation. You 

 12 must accept the stipulation as fact to be given whatever 

 13 weight you choose. 

 14 Now, what is not evidence. Certain things are 

 15 not evidence and you may not consider them in deciding 

 16 what the facts are. I will list them for you. 

 17 Arguments and statements by lawyers are not 

 18 evidence. The lawyers are not witnesses. What they say 

 19 in their opening statements, closing arguments, and at 

 20 other times is intended to help you interpret the 

 21 evidence, but as I told you at the beginning, it's not 

 22 evidence. If the facts as you remember them differ from 

 23 the way the lawyers state them, it's your memory of the 

 24 facts that controls. 

 25 Questions and objections by lawyers are not 

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 1 evidence. Lawyers have a duty to their clients to 

 2 object when they believe a question or an exhibit is 

 3 improper under the rules of evidence. You should not be 

 4 influenced by the objection or by my ruling on it. 

 5 Anything that I've excluded from evidence, and 

 6 that's happened occasionally during the trial, and 

 7 instructed you to disregard as not evidence, you must 

 8 not consider such items. 

 9 Anything you may have seen or heard when the 

 10 court was not in session is not evidence. You are to 

 11 decide this case solely on the evidence received at 

 12 trial. 

 13 The indictment is not evidence. This case, 

 14 like most criminal cases, began with an indictment. The 

 15 indictment in this case was brought against these 

 16 defendants and has multiple counts. You remember counts 

 17 means charges. You will have the indictment before you 

 18 in the jury room during the course of your 

 19 deliberations. This indictment will contain the counts 

 20 on which you will deliberate. I caution you, as I have 

 21 before, that the fact that a defendant has had an 

 22 indictment filed against him or her is no evidence 

 23 whatsoever of his or her guilt. The indictment is 

 24 simply an accusation. It is the means by which the 

 25 allegations and the charges of the government are 

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 1 brought before this court. The indictment by itself 

 2 proves nothing. 

 3 Now, as part of the evidence in this case you 

 4 may have heard alleged statements by the defendants that 

 5 were recorded or other video recordings. This is proper 

 6 evidence for you to consider. You will have the ability 

 7 in the jury room to listen to recordings received into 

 8 evidence. You will be provided a laptop in the jury 

 9 room so you can listen to the recordings and view videos 

 10 that were received into evidence. You should not use 

 11 this laptop for any other purpose. 

 12 Now, during the presentation of evidence, you 

 13 have seen what is alleged to be firearms, ammunition and 

 14 other items identified as destructive devices. Some of 

 15 these items have been admitted into evidence as 

 16 exhibits. Unlike other exhibits, these alleged 

 17 firearms, ammunitions and the items identified as 

 18 destructive devices will not be present with you in the 

 19 jury room when you go to deliberate. You will, however, 

 20 be allowed to examine them if you wish to do so. If you 

 21 would like to examine any of these exhibits during your 

 22 deliberations, please communicate that wish to me by 

 23 giving a note to the jury officer, which he will give to 

 24 me. A court security officer will then bring the 

 25 exhibits you request into the jury room, and you will be 

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 1 allowed to examine them there in his presence. Now, do 

 2 not deliberate in the jury room while he is present. 

 3 Look at whatever exhibits you wish to do and wait till 

 4 he leaves with the exhibits before you begin to 

 5 deliberate. You're supposed to deliberate without 

 6 anyone else being in the jury room, so therefore don't 

 7 discuss the case or deliberate while anyone is there 

 8 bringing you an exhibit. Wait until the officer leaves 

 9 with the exhibit. 

 10 I now come to the second part of my 

 11 instructions, the elements of the offenses the 

 12 government has charged and what it must prove to make 

 13 its case. 

 14 In general, the indictment charges that the 

 15 offenses were committed on or about certain dates. It 

 16 is sufficient if the government proves beyond a 

 17 reasonable doubt that the offense was committed on dates 

 18 reasonably near the dates charged. 

 19 Count I, charge one, conspiracy to prevent 

 20 officers of the United States from discharging their 

 21 duties. 

 22 The defendants are charged in Count I with 

 23 conspiring with each other and other co-conspirators to 

 24 prevent by force, intimidation or threat officers of the 

 25 United States from arresting Edward and Elaine Brown. 

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 1 It is against the law to conspire with someone to commit 

 2 this crime. To prove that any of the defendants 

 3 conspired to commit this crime, the government must 

 4 prove the following beyond a reasonable doubt: 

 5 First, that the agreement specified in the 

 6 indictment, and not some other agreement, existed 

 7 between at least two people. 

 8 Second, that the defendant willfully joined 

 9 that agreement. 

 10 Third, that the defendant acted with intent to 

 11 prevent employees of the United States Marshal Service 

 12 in the discharge of their official duties. 

 13 Fourth, one of the conspirators committed an 

 14 overt act alleged in the indictment during the period of 

 15 the conspiracy in an effort to further the purpose of 

 16 the conspiracy. 

 17 And fifth, that the employees of the United 

 18 States Marshal Service are officers of the United 

 19 States. 

 20 I will instruct you further about the law of 

 21 conspiracy after I describe Count II. 

 22 Count II, conspiracy to commit offenses 

 23 against the United States. 

 24 In Count II the defendants are charged with 

 25 conspiring with each other and other co-conspirators to 

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 1 commit a federal crime -- specifically, to assault, 

 2 resist, or impede officers of the United States in the 

 3 discharge of their duties to arrest Edward and Elaine 

 4 Brown. It is against federal law to conspire with 

 5 someone to commit this crime. For you to find that 

 6 either of the defendants are guilty of this conspiracy, 

 7 you must be convinced that the government has proven 

 8 each of the following things beyond a reasonable doubt: 

 9 First, that the agreement specified in the 

 10 indictment, and not some other agreement or agreements, 

 11 existed between at least two people to assault, resist, 

 12 or impede officers of the United States in the discharge 

 13 of their duties to arrest Edward and Elaine Brown. 

 14 Second, that the defendant willfully joined in 

 15 that agreement. 

 16 Third, that the defendant acted with intent to 

 17 further its unlawful purpose. 

 18 And fourth, that one of the conspirators 

 19 committed an overt act alleged in the indictment during 

 20 the period of the conspiracy in an effort to further the 

 21 purpose of the conspiracy. 

 22 A conspiracy is an agreement, spoken or 

 23 unspoken. The conspiracy does not have to be a formal 

 24 agreement or plan in which everyone involved sat down 

 25 together and worked out all the details. 

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 1 The government must prove beyond a reasonable 

 2 doubt that those who were involved shared a general 

 3 understanding about the crime. Mere similarity of 

 4 conduct among various people, or the fact that they may 

 5 have associated with each other or discussed common aims 

 6 and interests does not necessarily establish proof of 

 7 the existence of a conspiracy, but you may consider such 

 8 factors. 

 9 To act willfully means to act voluntarily and 

 10 intelligently and with the specific intent that the 

 11 underlying crime be committed -- that is to say, with 

 12 bad purpose, either to disobey or disregard the law -- 

 13 and not to act by ignorance, accident or mistake. The 

 14 government must prove two kinds of intent beyond a 

 15 reasonable doubt before a defendant can be said to have 

 16 willfully joined a conspiracy. First, an intent to 

 17 agree. Second, an intent, whether reasonable or not, 

 18 that the underlying crime be committed. Mere presence 

 19 at the scene of a crime is not alone enough, but you may 

 20 consider it among other factors. Intent may be inferred 

 21 from the surrounding circumstances. 

 22 Proof that any defendant willfully joined in 

 23 the agreement must be based upon evidence of his or her 

 24 own words and/or actions. You need not find that any 

 25 defendant agreed specifically to or knew about all the 

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 1 details of the crime, or knew every other co-conspirator 

 2 or that he or she participated in each act of the 

 3 agreement or played a major role, but the government 

 4 must prove beyond a reasonable doubt that the defendant 

 5 knew the essential features and the general aims of the 

 6 venture. Even if a defendant was not part of the 

 7 agreement at the very start, he or she can be found 

 8 guilty of conspiracy if the government proves that he or 

 9 she later joined the agreement later. On the other 

 10 hand, a person who has no knowledge of a conspiracy, but 

 11 simply acts in a way that furthers some object or 

 12 purpose of the conspiracy, does not thereby become a 

 13 conspirator. 

 14 Count III and IV, carrying, using or 

 15 possessing a firearm, including a destructive device, in 

 16 connection with a crime of violence. 

 17 The defendants are charged in Counts III and 

 18 IV with carrying, using or possessing a firearm, 

 19 including a destructive device, in connection with a 

 20 crime of violence. Count III charges defendant Edward 

 21 Brown. Count IV charges defendant Elaine Brown with 

 22 that crime. In order to prove that either of the 

 23 defendants carried, used or possessed a firearm in 

 24 connection with a crime of violence, the government must 

 25 prove the following beyond a reasonable doubt: 

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 1 First, that the defendant conspired to prevent 

 2 officers of the United States from discharging their 

 3 duties as charged in Count I, or conspired to interfere 

 4 with federal law enforcement officers in the discharge 

 5 of their duties as charged in Count II of the 

 6 indictment. 

 7 Second, defendant knowingly carried or used a 

 8 firearm including a destructive device during and in 

 9 relation to, or possessed a firearm including a 

 10 destructive device in furtherance of, the commission of 

 11 that crime of violence. 

 12 The word knowingly as that term has been used 

 13 in these instructions, means that the act was done 

 14 voluntarily and intentionally and not because of mistake 

 15 or accident. 

 16 The term firearm means any weapon which will 

 17 or is designed to or may be readily converted to expel a 

 18 projectile by the action of an explosive. 

 19 A destructive device, the term destructive 

 20 device, means any explosive, incendiary bomb, grenade, 

 21 bomb or similar device, or any type of weapon by 

 22 whatever name known which will, or which may be readily 

 23 converted to, expel a projectile by the action of an 

 24 explosive or other propellant, and which has any barrel 

 25 with a bore of more than one-half inch in diameter. 

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 1 Destructive device also includes any combination of 

 2 parts either designed or intended from which a 

 3 destructive device may be assembled. 

 4 Possess means to exercise authority, dominion 

 5 or control over something. The law recognizes different 

 6 kinds of possession. Possession includes actual and 

 7 constructive possession. A person who has direct 

 8 physical control of something on or about his or her 

 9 person is in actual possession of it. A person who is 

 10 not in actual possession, but who has both the power and 

 11 the intention to exercise control over something is in 

 12 constructive possession. Whenever I've used the term 

 13 possession in these instructions, I mean actual as well 

 14 as constructive possession. Possession also includes 

 15 sole possession or joint possession. If one person 

 16 alone has actual or constructive possession, possession 

 17 is sole. If two or more people share actual or 

 18 constructive possession, possession is joint. Whenever 

 19 I've used the word possession in these instructions, I 

 20 mean joint as well as sole possession. 

 21 The term in furtherance as I've used it mean 

 22 to help, further, promote, or advance the crime. 

 23 There is another method by which you may 

 24 evaluate whether to find any of the defendants guilty of 

 25 carrying, using or possessing a firearm in connection 

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 1 with a crime of violence. If, in light of my 

 2 instructions, you find a reasonable doubt that a 

 3 defendant was guilty on the conspiracy charged in Count 

 4 I or II, then you may also, but you are not required to, 

 5 find that defendant guilty of carrying, using or 

 6 possessing a firearm in connection with a crime of 

 7 violence, provided you find beyond a reasonable doubt 

 8 each of the following elements: 

 9 First, that someone else committed the crime 

 10 of carrying, using or possessing a firearm in connection 

 11 with a crime of violence. 

 12 Second, that the person you find actually 

 13 committed the substantive crime of carrying, using or 

 14 possessing a firearm in connection with a crime of 

 15 violence was a member of the conspiracy of which you 

 16 found defendant was a member. 

 17 Third, that this co-conspirator committed the 

 18 substantive crime in furtherance of the conspiracy. 

 19 Fourth, that this defendant was a member of 

 20 the conspiracy at the time the substantive crime was 

 21 committed and had not withdrawn from it. 

 22 And fifth, the defendant could reasonably have 

 23 foreseen that one or more of his or her co-conspirators 

 24 might commit the substantive crime. If you find all 

 25 five of these elements exist beyond a reasonable doubt, 

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 1 you may find the defendant guilty of the substantive 

 2 crime charged even though he or she did not personally 

 3 participate in the acts constituting the crime or did 

 4 not have personal knowledge of them. If, however, 

 5 you're not satisfied as to the existence of any one of 

 6 these five elements, then you may not find that 

 7 defendant guilty of that particular substantive crime 

 8 unless the government proves beyond a reasonable doubt 

 9 that the defendant personally committed that substantive 

 10 crime. 

 11 Counts V and VI: Felon in possession. 

 12 The defendants are charged with a violation of 

 13 federal law which makes it a crime for a person 

 14 convicted of a felony to possess a firearm. Edward 

 15 Brown is charged in Count V with possession of a firearm 

 16 after having been convicted of a crime punishable by 

 17 imprisonment for more than a year. Elaine Brown is 

 18 charged in Count VI with possessing a firearm after 

 19 having been convicted of a crime punishable by 

 20 imprisonment for more than a year. In order to prove 

 21 either of the defendants guilty of this crime, the 

 22 government must prove the following beyond a reasonable 

 23 doubt: 

 24 First, that that defendant was previously 

 25 convicted in any court of at least one crime punishable 

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 1 by imprisonment for a term exceeding one year. 

 2 Second, that the defendant knowingly possessed 

 3 the firearm described in the indictment. 

 4 And third, that the firearm was in or affected 

 5 interstate commerce. 

 6 Count VII and VIII: Obstruction of justice. 

 7 The defendants are charged with violation of 

 8 federal law, which makes it a crime to obstruct justice. 

 9 Edward Brown is charged with obstruction of justice in 

 10 Count VII. Elaine Brown is charged with obstruction of 

 11 justice in Count VIII. In order to prove this charge, 

 12 the government must prove the following beyond a 

 13 reasonable doubt: 

 14 First, that there were trial and sentencing 

 15 proceedings pending before a federal court against the 

 16 defendants Edward and Elaine Brown for violation of tax 

 17 laws and other financial crimes. 

 18 Second, the defendant knew of the pending 

 19 proceeding. 

 20 Third, the defendant threatened physical force 

 21 against the United States Marshals as charged in the 

 22 indictment. 

 23 And fourth, that the defendant's conduct 

 24 influenced, obstructed, or impeded, or endeavored to 

 25 influence, or obstruct, or to impede the due 

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 1 administration of justice in that proceeding. It is not 

 2 necessary to show that the defendant was successful in 

 3 achieving this forbidden objective, only that the 

 4 defendant corruptly tried to achieve it in a manner 

 5 which he or she knew was likely to influence, obstruct, 

 6 or impede the due administration of justice as to the 

 7 natural and probable effect of the defendant's actions. 

 8 Count IX: Failure to appear for trial. 

 9 Edward Brown is charged with violation of 

 10 federal law which makes it a crime for anyone who has 

 11 been released on bail in this court to thereafter 

 12 willingly fail to appear when required to do so. In 

 13 Count IX Edward Brown is charged with willfully failing 

 14 to appear at his trial on tax charges in January 2007. 

 15 In order to prove this charge, the government 

 16 must prove the following beyond a reasonable doubt: 

 17 First, that the defendant had been released on 

 18 bail pursuant to an order of a judge or a magistrate 

 19 judge of this court on condition that the defendant 

 20 appear in court for trial. 

 21 Second, that the defendant thereafter 

 22 willfully failed to appear at trial as required on 

 23 January 12, 2007 and continuing through January 18, 

 24 2007. 

 25 And third, that the offense charged in the 

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 1 case in which the defendant had been released on bail 

 2 was punishable by a term of imprisonment of five years 

 3 or more. 

 4 Counts XI and X: Failure to appear for 

 5 sentencing. 

 6 Defendants are charged with violation of 

 7 federal law which makes it a federal crime for anyone 

 8 who has been released on bail in this court to 

 9 thereafter willfully fail to appear when required to do 

 10 so for sentencing. In Count X Edward Brown is charged 

 11 with willfully failing to appear at his sentencing 

 12 hearing on April 24, 2007, in connection with his 

 13 conviction on tax charges. In Count XI Elaine Brown is 

 14 charged with willfully failing to appear at her 

 15 sentencing hearing on April 24, 2007, in connection with 

 16 her conviction on tax charges. 

 17 In order to prove this charge, the government 

 18 must prove the following beyond a reasonable doubt: 

 19 First, that the defendant had been released on 

 20 bail pursuant to an order of a judge or magistrate judge 

 21 of this court on condition that the defendant appear in 

 22 court for sentencing as required on April 24, 2007. 

 23 Second, that the defendant thereafter 

 24 willfully failed to appear for sentencing. 

 25 And third, that the offense charged in the 

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 1 case in which the defendant had been released on bail 

 2 was punishable by a term of imprisonment of five years 

 3 or more. 

 4 Remember, the defendants deny committing the 

 5 offenses I've just described and both defendants have 

 6 pled not guilty to the charges made against them. 

 7 I now come to the last part of my 

 8 instructions, the rules for your deliberations. 

 9 When you retire to the jury room, you will 

 10 discuss this case with the other jurors. You shall 

 11 permit your foreperson, Juror No. 1 here, to preside 

 12 over your deliberations, and your foreperson, Juror No. 

 13 1, will speak for you here in court. Your verdict must 

 14 be unanimous. 

 15 Your verdict must be based solely on the 

 16 evidence and on the law as I have given it to you in 

 17 these instructions. However, remember that nothing that 

 18 I have said or done is intended to suggest what your 

 19 verdict should be -- that's entirely for you to decide. 

 20 Each of you must decide the case for yourself, 

 21 but you should do so only after considering all of the 

 22 evidence, discussing it fully with the other jurors, and 

 23 listening to the views of the other jurors. 

 24 Don't be afraid to change your opinion if you 

 25 think you are wrong. But don't come to a decision 

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 1 simply because other jurors think it is right. 

 2 This case has taken considerable time and 

 3 effort to prepare and try. There is no reason to think 

 4 that it could be better tried or that another jury is 

 5 better qualified to decide it. It is important 

 6 therefore that you reach a verdict if you can do so 

 7 conscientiously. If it looks at some point as if you 

 8 may have difficulty in reaching a unanimous verdict, and 

 9 if the greater number of you are agreed on a verdict, 

 10 the jurors in both the majority and the minority should 

 11 re-examine their positions to see whether they've given 

 12 careful consideration and sufficient weight to the 

 13 evidence that has favorably impressed the jurors who 

 14 disagree with them. You should not hesitate to 

 15 reconsider your views from time to time and to change 

 16 them if you're persuaded that this is appropriate. 

 17 It is important that you attempt to reach a 

 18 verdict, but of course, only if each of you can do so 

 19 after having made your own conscientious determination. 

 20 Do not surrender an honest conviction about the evidence 

 21 simply to reach a verdict. 

 22 Now, to assist you in your deliberation on 

 23 these issues and to help you in reporting your decisions 

 24 I am providing to you two verdict forms. One for each 

 25 defendant. As to these instructions, nothing in the 

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 1 form is intended to suggest what result you should 

 2 reach. Would you pass those out for me. 

 3 THE CLERK: Thank you, your Honor. 

 4 THE COURT: There should be two attached by a 

 5 paper clip. Does everyone have one? Back row? Yes, 

 6 okay, we're going to start with United States of America 

 7 versus Edward Brown. Everyone put that in front of 

 8 them. The top is the name of the case. And it 

 9 indicates jury verdict form. Starts with Count I. You 

 10 remember I've gone through each of the counts with you. 

 11 It separates them out. When and if you reach a 

 12 unanimous verdict you will see there's a spot, we the 

 13 jury find the defendant, Edward Brown, the foreperson 

 14 who will write either not guilty or guilty in that 

 15 space. 

 16 And then when you finish Count I you proceed 

 17 to question two. You see the instruction right under 

 18 Count I. I know you see it but I have to tell you 

 19 anyway. 

 20 Then the second one, we the jury find the 

 21 defendant, Edward Brown, not guilty or guilty of 

 22 conspiracy to hinder or prevent the United States 

 23 Marshals in attempting to arrest Edward and Elaine 

 24 Brown. 

 25 Now, you see some instructions at the bottom 

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 1 of the page. If you have answered either question one 

 2 guilty or question two guilty, go to question three. If 

 3 you have answered both question one and question two not 

 4 guilty, skip questions three and four and go to question 

 5 five, and that's because question three and four only 

 6 apply if you found the defendant guilty of either one 

 7 and two. Everyone understand? Okay. 

 8 So if you found guilty on one and two or one 

 9 or two, you will go to question three. We the jury find 

 10 the defendant, Edward Brown, not guilty, guilty, of 

 11 carrying, using or possessing a firearm in connection 

 12 with the crime of violence charged in Count I or II. 

 13 Now, if you answer that guilty, you'll go to 

 14 question four. If you say not guilty, you'll skip 

 15 question four. Question four has to do with whether the 

 16 firearm is a destructive device. All destructive 

 17 devices are firearms, but not all firearms are 

 18 destructive devices. So therefore unless you find the 

 19 defendant guilty of Count III, you can't go on to Count 

 20 IV because there's no underlying firearm. Everyone 

 21 understand? Okay. 

 22 Then you go to question five. We the jury 

 23 find the defendant, Edward Brown, this is the felon in 

 24 possession, not guilty, guilty, of possessing a firearm 

 25 after having been convicted of a crime punishable by 

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 86 

 1 imprisonment for more than one year. And you see the 

 2 instruction. 

 3 Go to question six. We the jury find the 

 4 defendant, Edward Brown, not guilty, guilty, of 

 5 obstructing justice. 

 6 Then question seven. We the jury find the 

 7 defendant, Edward Brown, not guilty, guilty, of failing 

 8 to appear at trial. 

 9 Proceed to question eight. We the jury find 

 10 the defendant, Edward Brown, not guilty, guilty, of 

 11 failing to appear at sentencing. 

 12 When you're done, the foreperson will date the 

 13 verdict form as you see it on the last page and sign it. 

 14 Then let's go over to Elaine Brown, and you 

 15 can do this in either order. I'm just starting with one 

 16 and not the other. 

 17 Count I, again, conspiracy to prevent by 

 18 force, intimidation or threat, officers of the United 

 19 States from arresting Edward and Elaine Brown not 

 20 guilty, guilty. 

 21 Proceed to question two. The jury finds not 

 22 guilty or guilty of Elaine Brown of conspiracy to hinder 

 23 or prevent the United States Marshals in attempting to 

 24 arrest Edward and Elaine Brown. Again, if you have 

 25 found guilt as to one and two, go to question three. If 

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 1 you found not guilty to both, skip three and four and go 

 2 to five just as I have told you before. 

 3 Question three, we the jury find, Elaine 

 4 Brown, not guilty or guilty of carrying or using a 

 5 firearm in connection with the crime of violence charged 

 6 in Count I and II. If you find not guilty on that, in 

 7 other words, there was no firearm, you skip the 

 8 destructive device. If you find firearm, then you have 

 9 to decide whether that's a destructive device. There 

 10 may be firearms that aren't destructive devices, there 

 11 may be firearms that are not destructive devices. You 

 12 may find one or more firearms, you may find no firearms. 

 13 One of those in order for you to say guilty on Count IV 

 14 has to be a destructive device as defined in the 

 15 instructions. 

 16 Question five has to do with possessing a 

 17 firearm by a felon. 

 18 Then you go to question six, whether Elaine 

 19 Brown is guilty or not guilty of obstructing justice. 

 20 And then question seven, we the jury find 

 21 Elaine Brown not guilty or guilty of failing to appear 

 22 at sentencing. 

 23 Sign and date. Then give a written note to 

 24 the jury officer outside your door, a note indicating 

 25 the jury has finished its deliberations and have 

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 1 verdicts. Do not give these verdict forms to the jury 

 2 officer. Keep them. I will take those verdict forms 

 3 from you at court. Just give a note to the jury officer 

 4 saying you've reached a verdict and you're ready to 

 5 return to the courtroom. After you return to the 

 6 courtroom your foreperson will deliver the completed 

 7 verdict forms as directed by me in open court. 

 8 Everyone understand what I'm saying? Okay. 

 9 If it becomes necessary during your 

 10 deliberations to communicate with me, you may send a 

 11 note through the jury officer signed by your foreperson 

 12 or by one or more members of the jury. No member of the 

 13 jury should ever attempt to communicate with me on 

 14 anything concerning this case except by a signed 

 15 writing. And I will communicate with any member of the 

 16 jury on anything concerning this case in writing, or I 

 17 may bring you back here in open court if it will take a 

 18 little longer than something in writing. If you send 

 19 out a question, I will consult with the parties as 

 20 promptly as possible before answering it. That may take 

 21 some time. You may continue with your deliberations 

 22 while waiting for the answer to any question. Remember, 

 23 you're not to tell anyone, including me, how the jury 

 24 stands, numerically or otherwise, until after you've 

 25 reached a unanimous verdict or have been discharged. 

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 1 In conclusion, ladies and gentlemen, if the 

 2 government has established the guilt of a defendant 

 3 under the law beyond a reasonable doubt, you should find 

 4 the defendant guilty. If, on the other hand, the 

 5 government has not in your view established the guilt of 

 6 a defendant beyond a reasonable doubt, you should find 

 7 the defendant not guilty on that particular charge. 

 8 Now I'm going to confer briefly with counsel 

 9 over here at sidebar. I may have some additional 

 10 remarks to make to you, and then I will submit this case 

 11 to you for deliberation. 

 12 AT SIDEBAR 

 13 THE COURT: Counsel for the government, 

 14 objections? 

 15 MR. HUFTALEN: I noticed something that I 

 16 didn't notice earlier and that is on the verdict forms 

 17 for each with respect to Counts I and II, they're 

 18 written in the conjunctive with respect to Edward and 

 19 Elaine. 

 20 THE COURT: All right, what does the 

 21 indictment say? 

 22 MR. HUFTALEN: I believe the indictment says 

 23 Edward and Elaine. I believe it says Edward and Elaine. 

 24 THE COURT: Then the verdict reads the same as 

 25 the indictment? 

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 90 

 1 MR. HUFTALEN: You're right, I'm sorry, the 

 2 instruction is in the disjunctive, okay. 

 3 THE COURT: Anything else? 

 4 MR. HUFTALEN: Yeah, the redacted indictment 

 5 we have, or the indictment that's going to go in has 

 6 been redacted substantially and it looks peculiar with 

 7 all of the gray redacts on it. 

 8 THE COURT: You want me to tell them to 

 9 disregard the gray? Counsel agree? 

 10 MR. IACOPINO: I join in that. 

 11 MR. LANGE: I agree. 

 12 MR. HUFTALEN: Lastly there's a forfeiture 

 13 provision at the end of the indictment. We do not 

 14 intend to -- 

 15 THE COURT: Is that included in this form? 

 16 MR. HUFTALEN: It is on the last page. We 

 17 intend to pursue that civilly later, not through this. 

 18 THE COURT: Okay. 

 19 MR. IACOPINO: Has it been redacted out of the 

 20 indictment? 

 21 MR. HUFTALEN: No, it hasn't. 

 22 THE COURT: You want that redacted? 

 23 MR. IACOPINO: Yeah, please. 

 24 MR. HUFTALEN: We just take page 24 of 25 out. 

 25 THE COURT: Okay, the last page, just rip it 

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 91 

 1 off. 

 2 MR. HUFTALEN: We can take the signature page 

 3 off as well and just take the last two? 

 4 THE COURT: I don't think so. Why don't you 

 5 remove page 24 and leave the last page. Everyone agree? 

 6 MR. LANGE: I agree. 

 7 THE COURT: No one disagrees. That one, okay. 

 8 Next? 

 9 MR. HUFTALEN: Nothing further. 

 10 THE COURT: Mr. Lange? 

 11 MR. LANGE: Your Honor, I renew the points 

 12 that I made during the charge conference earlier this 

 13 afternoon. I urge the court to give a justification 

 14 instruction. You already have my argument. Do you want 

 15 me to make it again? I don't have anything to add to 

 16 what I argued before. 

 17 THE COURT: Request is denied. 

 18 MR. LANGE: With regard to the lesser included 

 19 offense I realize now that the deliberation form 

 20 incorporates many of my concerns, but I do want to 

 21 preserve for appellate purposes the court's decision not 

 22 to grant the proposed lesser included instruction I 

 23 submitted last night. 

 24 THE COURT: I think it's covered. 

 25 MR. LANGE: I misspoke with regard to my third 

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 92 

 1 objection. I urge the court to modify the next to last 

 2 paragraph on page 25 summarizing the burden of proof. 

 3 What I would urge the court to do is say in conclusion, 

 4 ladies and gentlemen, if the government established the 

 5 guilt of the defendant under the law beyond a reasonable 

 6 doubt, you may find the defendant guilty. In other 

 7 words, I would ask that the "should" be replaced with 

 8 "may." 

 9 THE COURT: That's denied. What else? 

 10 MR. LANGE: There's going to be further 

 11 explanation -- 

 12 THE COURT: Go ahead. 

 13 MR. LANGE: My argument is that although 

 14 federal law doesn't at this point permit jury 

 15 nullification, there is, it appears, a tendency in the 

 16 Supreme Court particularly to give greater power to 

 17 jurors in deciding guilt or innocence in cases and I 

 18 think that the proposed jury instruction would be a 

 19 reasonable and constitutionally supportive step in the 

 20 direction of empowering jurors. 

 21 THE COURT: Anything else? 

 22 MR. LANGE: I join in Attorney Iacopino's 

 23 argument with respect to reasonable doubt in the Allen 

 24 charge. 

 25 THE COURT: Mr. Iacopino. 

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 1 MR. IACOPINO: Thank you, your Honor. Your 

 2 Honor, we too would object to the lack of a 

 3 justification instruction as we discussed in chambers. 

 4 As we indicated to you in chambers, we believe the 

 5 defendant's testimony alone was enough evidence to 

 6 warrant the theory of the defense instruction and that 

 7 it was up to the jury to determine whether or not his 

 8 beliefs were reasonable, objectively or not. 

 9 Secondly, your Honor, I object as I did during 

 10 the charging conference to the beyond a reasonable doubt 

 11 instruction. I think that the way the instruction was 

 12 given, and I understand that it's a pattern instruction, 

 13 but the way that it's given I think it shifts an 

 14 advantage to the government in terms of the ability of 

 15 the jury to understand the term reasonable doubt. 

 16 Third, I object to your portion of the charge 

 17 which is essentially from the Allen case because there 

 18 is no indication at this point in time that any of the 

 19 jurors have any -- there's any sort of stalemate or 

 20 inability to reach a verdict. 

 21 I join in all of the objections made by Mrs. 

 22 Brown's counsel. I, too, would ask you to amend the 

 23 conclusionary paragraph on page 25. I would ask you to 

 24 amend it, from our view, this is not the same objection 

 25 Mr. Lange made, but I think the last sentence should 

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 1 read that, if on the other hand the government has not 

 2 in your view established the guilt of the defendant 

 3 beyond a reasonable doubt, you have and you should find 

 4 the defendant not guilty. I believe that should be "you 

 5 must find the defendant not guilty." 

 6 MR. LANGE: I concur with that last argument. 

 7 THE COURT: Your requests are denied. Your 

 8 objections are overruled. 

 9 Any issues with regard to the verdict form? 

 10 MR. HUFTALEN: No. 

 11 MR. IACOPINO: Not from us, judge. 

 12 THE COURT: Mr. Lange. 

 13 MR. LANGE: Not from me, your Honor. 

 14 THE COURT: All right, I'm going to at this 

 15 point excuse -- before I forget, I'm going to mention 

 16 the indictment and the redactions, and I'm going to 

 17 excuse the alternate. I'm going to tell the alternate 

 18 to not read anything about this case, discuss the case, 

 19 keep sterile so to speak, leave a phone number so that 

 20 we can reach the alternate in case one of the jurors 

 21 gets ill or whatever during the course of deliberations. 

 22 Does anyone object? 

 23 MR. HUFTALEN: I do not object. 

 24 MR. LANGE: No. 

 25 MR. IACOPINO: No objection, your Honor. 

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 1 THE COURT: Now, what I'm going to do is, so 

 2 we're clear, is I'm going to excuse the alternate right 

 3 now before the other jurors leave before I commit this 

 4 case so that someone needs to get a phone number, I'm 

 5 going to instruct the alternate to give a phone number 

 6 so that we can either get the alternate back or tell 

 7 them we have a verdict. 

 8 THE CLERK: Do I have a moment to do that? 

 9 THE COURT: You absolutely can do that. I'm 

 10 going to wait because I don't want him in the jury room 

 11 anyway, so you go with him, and I'll wait for you to 

 12 come back before I do a commitment order, all right? 

 13 THE CLERK: Okay. If I call somebody up, can 

 14 they come take him down? 

 15 THE COURT: I'll wait for you to do that. 

 16 THE CLERK: Okay. 

 17 THE COURT: I'll just sit and wait until you 

 18 do that right now. Give me a high sign. You ready? 

 19 Let's collect the verdict forms. 

 20 BEFORE THE JURY 

 21 THE CLERK: Jurors, if you could pass the 

 22 verdict forms down and we will collect those. 

 23 THE COURT: We're sending one with you to the 

 24 jury room. You're not going to be without them. 

 25 THE CLERK: I have them all, your Honor. 

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 1 THE COURT: Very good. Now, I have no 

 2 additional instructions for you. I do want to mention 

 3 to you when you get the indictment that we talked about, 

 4 some parts have been grayed out or gone. Don't concern 

 5 yourselves with why or what's underneath it or you can't 

 6 see underneath it anyway because it's nothing, don't 

 7 worry about it, it's nothing to do with your 

 8 deliberations. Just disregard the parts that are gone. 

 9 All right, now at this time we started with 

 10 three alternates and we've now discovered why we have 

 11 alternate jurors. Alternate jurors are very important 

 12 and this case is an example. If we didn't have 

 13 alternates we wouldn't be able to finish. We still have 

 14 one alternate juror. I'm going to dismiss that 

 15 alternate at this time conditionally. 

 16 I'm going to instruct the alternate, even 

 17 though they're not going to be deliberating with the 

 18 jury, not to read anything about this case, discuss the 

 19 case, not to do anything I've forbidden you to do up to 

 20 now because it's possible that if a juror gets ill or 

 21 whatever during the course of the deliberations, I may 

 22 call that alternate back and that alternate will become 

 23 a juror, and then the jury will start deliberating 

 24 again. That's to prevent us not having enough jurors 

 25 during the course of deliberations. 

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 1 The alternate juror in this case is Juror No. 

 2 8 at the end of the front row here. Now Juror No. 8, I 

 3 want to emphasize, when you leave here you're going to 

 4 leave a phone number with the clerk so that the clerk 

 5 can call you and say come on down, all right, and you 

 6 may be called upon to come and begin deliberation with 

 7 the remaining members of this jury. Don't discuss this 

 8 case with anyone. Don't let anyone discuss it with you. 

 9 You're to do everything just as you were during the 

 10 course of this trial to remain just the way you were. 

 11 Don't consider this case. Don't think about it. Don't 

 12 discuss it. Don't do anything that may affect what 

 13 you've heard in this courtroom. Don't get any 

 14 additional views. And then leave a phone number. We 

 15 will call you, either A, if we need you to come down and 

 16 deliberate, or B, we will let you know the case is over 

 17 and you can then talk to whoever you wish. All right? 

 18 You're excused right now. I'm going to let you leave 

 19 now. The rest of the jury stay here because he can't be 

 20 in the room while you're deliberating. I'm just going 

 21 to wait a moment. 

 22 (Alternate juror leaving courtroom.) 

 23 THE CLERK: Thank you, your Honor. 

 24 THE COURT: I hereby order that this jury be, 

 25 and it is hereby, committed to the care, custody, and 

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 1 safekeeping of the United States Marshal for the 

 2 District of New Hampshire, and its duly authorized 

 3 deputy marshals, and the duly sworn jury officers of 

 4 this court for the period of their deliberation in this 

 5 matter now before the court. I further order that said 

 6 officers shall attend diligently upon the jury; shall 

 7 see that no one communicates with them, nor they with 

 8 others, except upon, and in accordance with, an order of 

 9 this court; and that their needs be speedily attended to 

 10 for such period of time as they may require. 

 11 Ladies and gentlemen of the jury, I commit 

 12 this case to you for deliberation and decision. I 

 13 commend you to your verdict. You may retire. The jury 

 14 is excused. We will be sending the exhibits into you as 

 15 soon as they are compiled. 

 16 (Jury excused to deliberation room.) 

 17 THE COURT: Anything else for the government? 

 18 MR. HUFTALEN: No, thank you. 

 19 THE COURT: Mr. Lange, anything else? 

 20 MR. LANGE: I have an exhibit to substitute. 

 21 I think we can do that by agreement. 

 22 THE COURT: Substitute? 

 23 MR. LANGE: It's the concert without the 

 24 sound. 

 25 MR. HUFTALEN: No objection. 

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 1 THE COURT: What is the new -- 

 2 MR. LANGE: It's two delta dash one. 

 3 THE CLERK: It's already been admitted, your 

 4 Honor. 

 5 THE COURT: So this will be two delta dash one 

 6 A. 

 7 MR. LANGE: It's the same. 

 8 THE COURT: It's exactly the same? Then it's 

 9 already in. All right, anything else, Mr. Lange? 

 10 MR. LANGE: No. 

 11 THE COURT: Mr. Iacopino? 

 12 MR. IACOPINO: Nothing, your Honor. 

 13 THE COURT: All right, we're in recess. Leave 

 14 your phone numbers with the clerk. 

 15 (Recess at 4:20 p.m. while jury deliberates.) 

 16 (7:00 p.m. in chambers.) 

 17 THE COURT: We received a note from the jury. 

 18 Counsel is present in chambers. It indicates as 

 19 follows. Quote, can we obtain an index of the items 

 20 admitted as evidence to aid in a search for specific 

 21 items of evidence for review. 

 22 That's the extent of the note. I propose to 

 23 answer as follows: In response to your note I will have 

 24 the exhibit list sent to you as soon as the lists are 

 25 prepared. 

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 1 Anyone object to that? 

 2 MR. LANGE: No, your Honor. 

 3 MR. HUFTALEN: No. 

 4 MR. IACOPINO: No, sir. 

 5 THE COURT: I propose at 7:30 to bring them 

 6 into court. I'll instruct them to not think about the 

 7 case overnight and to not begin deliberating until all 

 8 the jurors are present in the jury room. 

 9 MR. IACOPINO: What time are you going to 

 10 start them tomorrow? 

 11 THE COURT: 8:30. Any objection to that? 

 12 MR. LANGE: No. 

 13 (7:40 p.m. in chambers.) 

 14 THE COURT: I got another note from the jury. 

 15 It says can we get additional copies of the judge's 

 16 final jury instructions, 11 copies. I propose to 

 17 indicate to them, I'm going to bring them in the 

 18 courtroom because I'm going to wish them goodnight 

 19 anyway and give them the instructions I indicated 

 20 earlier. They will have 11 additional copies available 

 21 for them when they come in tomorrow morning at 8:30. 

 22 Anyone object? 

 23 MR. HUFTALEN: No. 

 24 MR. LANGE: No. 

 25 MR. IACOPINO: No, your Honor. 

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 1 THE COURT: Okay, we'll go in the courtroom 

 2 as soon as the jury is ready and we will wish them a 

 3 good evening. 

 4 MR. IACOPINO: Thank you, sir. 

 5 BEFORE THE JURY 

 6 THE COURT: Members of the jury, in response 

 7 to your recent note we will have 11 copies available for 

 8 you when you come in in the morning. 

 9 We're going to finish your deliberations for 

 10 this evening. I only called you in just to give you a 

 11 couple of reminders. 

 12 Now that you're in deliberations, obviously 

 13 once you leave here you're not going to talk to anybody 

 14 about the case. You're not going to let anyone talk to 

 15 you about the case. You're not going to do any 

 16 independent investigation or reading about this case in 

 17 the news or otherwise. Stop thinking about this case to 

 18 the extent you can. In fact, you have a little break 

 19 overnight, and when you come back tomorrow do not begin 

 20 deliberating, don't start discussing this case until all 

 21 of the jurors are present. It's important and it's 

 22 required that the jury deliberate all together. That 

 23 means all of you. So if one person comes in late or 

 24 whatever, I don't know, it's not my business how you get 

 25 here, but if one of you is late, don't start until 

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 1 you're all together, all right? 

 2 With that I wish you a very pleasant evening. 

 3 Thank you for your hard work today. The jury is 

 4 excused. 

 5 (Jury is excused from the courtroom.) 

 6 THE COURT: Anything else counsel? No? Okay, 

 7 we're in recess. 

 8 (Court recessed at 7:45 p.m.) 

 9 C E R T I F I C A T E 

 10 

 11 I, Sandra L. Bailey, do hereby certify that 

 12 the foregoing transcript is a true and accurate 

 13 transcription of the within proceedings, to the best of 

 14 my knowledge, skill, ability and belief. 

 15 

 16 

 17 Submitted: 11/3/09 /s/ Sandra L. Bailey 

 SANDRA L. BAILEY, LCR, CM, CRR 

 18 

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