UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE 

UNITED STATES OF AMERICA, ) 

) 

v. ) 

) Docket No. 09-30-GZS 

EDWARD BROWN and ELAINE BROWN, ) 

 ) 

 Defendants. ) 

ORDER ON DEFENDANTS’ REQUESTS 

FOR A NEW TRIAL AND ANCILLARY RELIEF 

Each Defendant has filed a Motion for New Trial. Defendant Elaine Brown’s Motion for 

New Trial and Ancillary Relief (Docket Item 176); Defendant Edward Brown’s Motion for New 

Trial Pursuant to Fed. R. Crim. P. 33 and for Intermediate Relief (Document Item 177). The 

Government objects to granting either of the Defendants a new trial. Government’s Partial 

Consolidated Objection to Motions for New Trial (Docket Item. 178); Government’s 

Consolidated Objection to Defendants’ Motions for New Trial (Docket Item 181). After 

thoroughly considering the argumentation of the parties and the affidavits submitted therewith, 

the Court will deny Defendants’ motions. 

I. DISCUSSION 

“The remedy of a new trial is to be granted sparingly and only to avoid a miscarriage of 

justice.” United States v. Garcia-Alvarez, 541 F.3d 8 (1st Cir. 2008). To the extent the Motions 

rely in part on allegations of newly discovered evidence, 

[a] defendant who seeks a new trial on the basis of newly discovered evidence 

bears a weighty burden of establishing that: (1) the evidence was unknown or 

unavailable to the defendant at the time of trial; (2) failure to learn of 

the evidence was not due to lack of diligence by the defendant; (3) the evidence is 

material and not merely cumulative or impeaching; and (4) the emergence of the 

evidence will probably result in an acquittal upon retrial of the defendant. A new 

trial motion must be denied if the defendant fails to meet any one of these factors. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 1 of 15
2 

A showing of prejudice under the fourth prong of the test requires an ‘actual 

probability that an acquittal would have resulted if the evidence had been 

available. 

United States v. Del-Valle, 566 F.3d 31, 38 (1st Cir. 2009) (quotations and citations omitted). A 

slightly different standard is applied when a defendant seeks new trial on the basis of newly 

discovered evidence that he contends should have been produced under Brady. “For such 

claims, the defendant must establish that: (1) the evidence at issue is material and favorable to 

the accused; (2) the evidence was suppressed by the prosecution; and (3) the defendant was 

prejudiced by the suppression in that there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different. Del-Valle, 566 

F.3d at 40. 

The issues raised by the Defendants are as follows: (1) an alleged Rule 16 violation by 

the Government for failure to disclose that it intended to offer threatening statements made by 

Defendant Edward Brown (Edward Brown Motion ¶¶ 15-19); (2) alleged errors in evidentiary 

rulings related to the Defendants’ state of mind and the justification defense (Edward Brown 

Motion ¶¶ 20-32; Elaine Brown Motion at 2, 4, 5-6); (3) alleged jury instruction errors by the 

Court (Elaine Brown Motion at 2, 3-4); (4) alleged errors by the Court in denying the Rule 29 

Motions (Elaine Brown Motion at 4); (5) an allegation that the government’s refusal to immunize 

two potential defense witnesses abridged Elaine Brown’s Sixth Amendment rights (Elaine 

Brown Motion at 5); and (6) allegations of newly discovered evidence (Edward Brown Motion 

¶¶ 10-13, 33-36; Elaine Brown Motion at 6-8). The Court will address each of the alleged errors 

in turn. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 2 of 15
3 

A. Alleged Rule 16 Violation

Defendant Edward Brown contends that the government violated Rule 16 when Chief 

Deputy Marshal Gary DiMartino testified about threats made by Edward Brown. In relevant 

part, Rule 16 states: 

Rule 16. Discovery and Inspection 

(a) Government's Disclosure. 

(1) Information Subject to Disclosure. 

(A) Defendant's Oral Statement. Upon a defendant's request, the government must 

disclose to the defendant the substance of any relevant oral statement made by the 

defendant, before or after arrest, in response to interrogation by a person the 

defendant knew was a government agent if the government intends to use the 

statement at trial. 

(B) Defendant's Written or Recorded Statement. Upon a defendant's request, the 

government must disclose to the defendant, and make available for inspection, 

copying, or photographing, all of the following: 

(i) any relevant written or recorded statement by the defendant if: 

• the statement is within the government's possession, custody, or control; 

and 

• the attorney for the government knows--or through due diligence could 

know--that the statement exists; 

(ii) the portion of any written record containing the substance of any relevant oral 

statement made before or after arrest if the defendant made the statement in 

response to interrogation by a person the defendant knew was a government 

agent; and 

(iii) the defendant's recorded testimony before a grand jury relating to the charged 

offense. 

Fed. R. Crim. P 16(a). At trial this issue was raised by the Defendants and discussed at side bar. 

The government proffered that Deputy DiMartino authored no reports and, therefore, there were 

necessarily no reports that contained any threats made by Mr. Brown. Because there were no 

reports, Rule 16(a)(1)(B) does not require disclosure. With respect to Rule 16(a)(1)(A), Deputy 

DiMartino testified that he and Mr. Brown had a series of telephonic discussions during the 

spring of 2007, which were designed by Deputy DiMartino to keep the lines of communication 

open and to persuade Mr. Brown to surrender. The undisputed testimony at trial indicated that 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 3 of 15
4 

the phone calls were conversational in tone and intended to facilitate a peaceful resolution of the 

situation. It was clear from the testimony of Mr. DiMartino that his many telephone 

conversations with Mr. Brown, during one of which the statement at issue was made, were not 

interrogations nor were they the functional equivalent of interrogations. Mr. Brown testified at 

trial but he did not dispute the nature of the telephone calls testified to by Deputy DiMartino. 

Because the conversation at issue was not an interrogation, the statement was not subject to Rule 

16 disclosure prior to Deputy DiMartino’s testimony. 

B. Evidence of Defendants’ State of Mind and the Justification Defense 

Prior to trial, the Court asked the Defendants to file offers of proof on the justification 

defense. See Edward Brown’s Sealed Offer of Proof (Docket Item 143); Elaine Brown’s Sealed 

Offer of Proof (Docket Item 145). Based on the Defendants written proffers, the Court 

determined that the affirmative defense of justification was not available. After hearing the 

Defendants evidentiary proffer at trial, the Court again ruled that the affirmative defense of 

justification was not available to the Defendants. At that time, the Court advised counsel that 

based upon United States v. Lahey, 473 F.3d 401 (1st Cir. 2007), the Defendants failed to satisfy 

the evidentiary predicate for the justification defense.1

 In connection with that ruling, the Court 

found that there was no other evidentiary basis to admit evidence relating to the state of mind of 

either Defendant.2

 Throughout trial the Court repeatedly advised defense counsel that the ruling 

 

1

 The four Lahey elements that must be shown to establish the justification defense are that the defendant was: (1) 

under an unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a 

situation in which he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative but 

to engage in that conduct; and (4) there was a direct causal relationship between his criminal conduct and the need to 

avoid the threatened harm. Here, the Defendants could not satisfy any of the elements from the Lahey test. 

2

 The Defendants argue that the Court erred by disallowing evidence of the defendants’ state of mind. This issue 

was addressed numerous times by the Court. The self serving statements of the Defendants that they wanted to offer 

were clearly hearsay, being out of court statements offered for the truth of the matters asserted. As such they were 

inadmissible. The case law in the First Circuit on the state of mind exception, including United States v. Cianci, 378 

F.3d 71 (1st Cir. 2004) and United States v. Alzanki, 54 F.3d 994 (1st Cir. 1995), were relied upon by the Court in 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 4 of 15
5 

was open for reconsideration if they had additional argumentation or precedent to present. The 

Defendants did not then, and do not now in the instant motions, provide additional basis to 

support the admission of evidence relating to state of mind or the justification defense 

instruction. Thus, for the reasons stated on the record at trial, the Defendants’ argument 

regarding the admissibility of evidence on state of mind and the justification defense is without 

merit. 

C. Alleged Errors in the Jury Instructions 

Elaine Brown alleges the Court made other errors with respect to the jury instructions. 

First, while acknowledging that the First Circuit precedent does not support her argument, she 

alleges that the Court erred when it declined to give an instruction on reasonable doubt that 

articulates “the inherent right of jury nullification.” Elaine Brown’s Motion for New Trial and 

Ancillary Relief at 4. The Court gave the reasonable doubt instruction found in the First Circuit 

Criminal Pattern Instructions. The Court did not err in refusing to give the jury nullification 

instruction. 

 Additionally, Elaine Brown argues that the Court erred by refusing to give a lesser 

included offense instruction as to the 924(c) charge. As a result of comments made by counsel 

for Elaine Brown at the charge conference, however, the Court modified the Verdict Form to 

make it clear to the jury that if they found the defendant not guilty of the firearm portion of the 

924(c) charge they could not consider the destructive device portion of the 924(c) charge. That 

is, only if the jury found the defendant guilty of the firearm portion of the 924(c) charge could 

they then consider the destructive device portion of the 924(c) charge. That modification did, in 

 sustaining the government’s objections to the proffered hearsay statements. Defense counsel provided no case law 

nor valid hearsay exception to warrant their admission and, therefore, the Court disallowed the testimony. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 5 of 15
6 

essence, provide the lesser included charge requested by the Defendant. Therefore, the Court did 

give a lesser included offense charge on the applicable 924(c) count of the Indictment. 

D. Alleged Errors in Admission of Evidence 

The Defendants also allege that certain co-conspirator statements, including e-mails 

between Daniel Riley and Cirino Gonzalez that concerned the purchase of weapons and 

ammunition to be brought to the Brown residence during the course of the conspiracy, and 

statements made by Jason Gerhard also made during the course of the conspiracy to the effect 

that law enforcement officials trying to arrest Edward Brown were acting treasonously and that 

the penalty for treason was death, should have been excluded. However, the Court conducted the 

required inquiry under United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977) and found that 

the statements were properly admitted, pursuant to Fed. R. Evid. 801(d)(2)(E), as co-conspirator 

statements made in furtherance of the conspiracy. 

Elaine Brown alleges that evidence of Daniel Riley, Jason Gerhard, Cirino Gonzalez and 

Robert Wolffe were indicted was improperly admitted over defense counsel’s objection. The 

Government responds that it was the Court, not defense counsel, who called counsel to the side 

bar after that evidence was elicited. Whether the issue was raised by the Court or defense 

counsel, the fact that the co-conspirators were charged in an indictment means nothing, as the 

jury was instructed prior to the start of trial and in the final jury instructions. Moreover, the 

Court notes that there was never any testimony at trial indicating that the co-conspirators were 

ever convicted of a crime. 

Elaine Brown also alleges that the Court erred by disallowing testimony offered by the 

defense to the effect that the government does not have the authority to collect income taxes, and 

to challenge the lawfulness of their prior tax convictions. Prior to trial, the Government filed a 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 6 of 15
7 

Motion in Limine, which sought to prevent the defendants from introducing evidence in order to 

attempt to establish that the Internal Revenue Service (“IRS”) does not have legal authority to 

collect personal income taxes. Government’s Motion in Limine (Docket Item 123). Whether the 

government has the authority to collect income taxes, which the law clearly establishes it does, 

or the lawfulness of the Defendants’ prior convictions, would not make the existence of any fact 

of consequence more or less probable. Thus, at the Final Pretrial Conference, the Court granted 

the Government’s motion to exclude any evidence regarding the IRS’s authority to collect 

income taxes and also ruled that the Defendants would not be permitted to introduce evidence 

challenging the lawfulness of their prior tax convictions. See Fed. R. Evid. 401 (“‘Relevant 

evidence’ means evidence having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be 

without the evidence.”). 

Elaine Brown alleges that the Court erred in having a portion of Edward Brown’s 

testimony read back to the jury. She now claims that the read back violated of Federal Rule of 

Evidence 106, commonly known as the rule of completeness. At the time the jury requested the 

testimony, the Court gave counsel for the Defendants and counsel for the Government sufficient 

time to review the real time transcript of Mr. Brown’s testimony before it was read to the jury. 

Although defense counsel objected to reading back any portion of Mr. Brown’s testimony, no 

request was made for additional portions of that testimony to be read back. Consequently, any 

completeness objection was not presented and the Court did not have the opportunity to consider 

the inclusion of any additional testimony. Moreover, to the extent the defendant objects to any 

rereading of testimony, the First Circuit has made clear that rereading of testimony to the jury 

rests in the sound discretion of the district court. See, e.g. United States v. Brandon, 17 F.3d 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 7 of 15
8 

409, 454-55 (1st Cir. 1994) (“[t]he decision to reread testimony rests entirely upon the trial 

court's sound discretion.”). 

Elaine Brown makes several foundation-based objections. First she objects to the 

admission of government exhibit 4(f), the video tape of the interior of the house used during the 

testimony of Kenneth Erickson, an explosive expert with the Bureau of Alcohol Tobacco and 

Firearms (“ATF”). At trial the Defendants objected to the use of the video because the 

Government had not established that what the video fairly and accurately depicted what had been 

present in the home when the Browns were arrested. The Government proffered that Special 

Operations Group (“SOG”) Commander David Robertson would testify that within minutes of 

the Browns’ arrest his men secured the house and that it remained secured until ATF agents 

arrived and took the video tape at issue – exhibit 4(f). Subject to that later occurring testimony 

defense counsel agreed that the video could be played and used during Mr. Erickson’s testimony. 

In fact David Robertson did so testify and he also authenticated and laid the proper foundation 

for government exhibit 4(g), a video tape taken by his men, while he was present, on the night 

the Browns were arrested. That video tape, which was admitted and played for the jury, 

corroborated the location of the evidence seen in exhibit 4(f). Accordingly, the record supports 

that there was a sufficient foundation for the admission of exhibit 4(f). 

Elaine Brown alleges that it was error for the Court to allow the Government to show to 

the jury and admit in evidence the post-arrest video and still photographs depicting her in 

handcuffs. She concedes that she did not object at the time either exhibit was being displayed to 

the jury or admitted in evidence. In the absence of any objection, the Court did not err by 

permitting the Government to display and admit the exhibits. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 8 of 15
9 

Elaine Brown also alleges it was error, although she does not explain why in her Motion, 

to have allowed the admission of “military and guerilla warfare training manuals taken from the 

Brown home after their arrest, Government Exhibits 33a-2 through 33a-8.” Elaine Brown’s 

Motion at p. 6. The books were found at the Brown home and were relevant to the issue of 

whether the Browns were actively engaged in unlawful threats of violence against law 

enforcement. A proper foundation was laid for the admission of those books. 

Elaine Brown also objects to the admission, as she did at trial, to all of the pipe bombs 

and all of the cans of gun powder that had been configured as explosive devices, alleging a lack 

of foundation. The testimony at trial established that those exhibits were what the government 

purported them to be, and that they had been recovered where the witnesses testified they were 

recovered in the Brown home or on the property. 

Elaine Brown also alleges, without further explanation, that it was error for the Court to 

have allowed Deputy United States Marshal Edward Recor to testify about seeing Edward 

Brown shouldering a weapon consistent with a 50 caliber rifle. During Deputy Recor’s 

testimony a 50 caliber rifle was shown to him and displayed to the jury. Deputy Recor testified 

that the 50 caliber was consistent with the type of rifle he had seen Edward Brown hold and point 

in the direction of the driveway, on the morning of June 7, 2007, within minutes of Daniel Riley 

having been tazered. The Government asserts that the rifle was later admitted as a full exhibit 

through another witness, ATF Agent Ernie Yerrington. The 50 caliber rifle was recovered at the 

Brown residence. There was nothing improper with Deputy Recor identifying the distinctive 

appearing firearm that he witnessed Mr. Brown holding. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 9 of 15
10 

E. Alleged Error in Denying Rule 29 Motions 

Elaine Brown alleges that the Court erred in denying her Motions for Judgment of 

Acquittal. See Fed. R. Crim. P. 29. Elaine Brown’s Motions for Judgment of Acquittal were 

denied for the reasons stated on the record at trial. Nothing has changed with respect to those 

motions, thus, for the reasons stated on the record at trial, the Defendants’ Rule 29 motions are 

without merit. 

F. Government’s Failure to Provide Immunity for Defense Witnesses’ Testimony 

Elaine Brown alleges that the government’s refusal to immunize two potential defense 

witnesses abridged her Sixth Amendment rights to present all favorable proofs. At no time 

during the trial did the Defendants assert that the government was acting in bad faith or that the 

Defendants’ Constitutional Rights were being violated by the Government’s refusal to immunize 

the prospective witnesses. That claim arises here for the first time. 

At trial, when the Defendants indicated that they would call Scott and Catherine Dion as 

witnesses, the Government advised the Defendants that the Dions were targets of an ongoing 

criminal tax investigation and that the Dions were aware of the investigation. The Government 

further indicated to the Court that any grant of immunity would likely create significant issues 

for that investigation. In United States v. Angiulo, 897 F.2d 1169 (1st Cir. 1990), the First 

Circuit critically reviewed the law as it relates to the two emerging theories related to compelling 

immunity, the effective defense theory (assuming theory is valid) and the prosecutorial 

misconduct theory. Id. at 1190-93. Although claiming error of Constitutional dimension, the 

Defendant has failed to articulate any facts sufficient to warrant inquiry into whether either 

theory might warrant the Court to consider ordering immunity, or to cause the Government to 

reconsider its position. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 10 of 15
11 

G. New Evidence 

The Defendants indicate that on the afternoon that the jury verdicts were returned, they 

spoke by telephone to an individual who identified himself as “David Quinn.” Mr. Quinn told 

defense counsel that “[t]he confidential informant who befriended the Browns and then 

orchestrated their arrest on October 4, 2007 was an employee of the Forseti Group.” Elaine 

Brown’s Motion at 7. “Mr. Quinn reported that he believes that the testimony provided by 

Government witnesses pertaining to the plan and the eventual arrest of the Brown’s is inaccurate. 

He reports that contrary to the testimony of Deputy Marshal William S. Robertson it was actually 

‘Dutch’ [the confidential informant] who disarmed and seized Ed Brown. Mr. Quinn also 

indicated that, as part of the planning for the apprehension of the Browns, psychological 

profiling consultants had determined that Ed Brown was mentally ill. Mr. Quinn also reported 

that the Forseti Group was being paid for its services by the United States Marshals Service.” 

Edward Brown’s Motion at 4. Mr. Quinn finally stated that “[t]he [Forseti Group] employee was 

present at the Brown home prior to and during their arrest. Based on his observations, he drew 

potentially exculpatory conclusions about Elaine Brown’s interactions with her husband.” Elaine 

Brown’s Motion at 7. At no point in time prior to trial or during trial was the defense made 

aware of any involvement of the Forseti Group. Edward Brown asserts that because this 

potentially exculpatory information was not provided to him he could not pursue: (1) the 

presentation of an insanity defense, (2) psychological information to further inform the jury with 

regard to whether Edward Brown acted with mens rea, (3) a Roviaro motion, and (4) 

impeachment of Deputy William S. Robertson regarding the arrest of Edward Brown. Edward 

Brown’s Motion at 12. The Defendants allege in their Motions that they are entitled to a new 

trial based upon this discovery of this new evidence or, alternatively, discovery regarding 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 11 of 15
12 

contracts, reports, invoices, e-mails or other writings pertaining related to the involvement of the 

Forseti Group in the investigation and arrest of the Defendants or the relationship between the 

Forseti Group and the Marshals Service. 

On two subsequent occasions, Attorney Iacopino attempted to contact Mr. Quinn by 

telephone. Sealed Declaration of Michael Iacopino Regarding the Defendant’s Pending Motion 

for a New Trial at 1 (Docket Item 188). On each occasion, a voice mail message identified the 

phone number as belonging to a school district. Id. at 2. On August 10, 2009, Attorney Iacopino 

again called the phone number he had been given by David Quinn and left a message. Id. 

Shortly after leaving the message, Attorney Iacopino received a call from a person who 

identified himself as the confidential informant. Id. The confidential informant advised 

Attorney Iacopino that David Quinn was a relative of his and that David Quinn had not provided 

“completely accurate information.” Id. The confidential informant further indicated that he was 

willing to answer any questions but only if the prosecutor and his lawyer were on the call. Id. 

Attorney Iacopino contacted the confidential informant again by telephone, and at that time a 

conference call was scheduled for noon on August 25, 2009. Id. at 2-3. 

Attorney Iacopino notified the Court at the presentence conference that the conference 

call scheduled for August 25, 2009, with the confidential informant did not take place because 

the confidential informant did not join the call at the appointed time. Attorney Iacopino also 

stated that he received a voice message from the individual he believed to be the confidential 

informant apologizing for not joining the scheduled call and indicating that he would get back to 

Attorney Iacopino when he was back in town. Thereafter, Attorney Iacopino indicated that he 

contemplated further filings on the matter, but to date there have been no filings made on behalf 

of either Defendant and counsel has not requested additional time to file. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 12 of 15
13 

 Given the unusual nature of the post-trial contacts by the individual I will refer to as 

David Quinn, the Court asked the Government to provide detailed, clarifying information 

regarding the United States Marshals Service’s relationship with the confidential informant, 

whether the confidential informant was employed by, or working with, any entity at the time he 

was working on the Brown case, the total amount of money paid to the informant, whether the 

informant had contact with the Forseti Group or any individual affiliated with the Forseti Group, 

in connection with the Brown case, and any potential Brady or Giglio information that the 

confidential informant may have knowledge of in the Brown case. See Sealed Order on Request 

for Information (Docket Item 189). The Government has filed four affidavits of Marshals 

Service employees who were involved with either the Brown case or the confidential informant. 

The Marshals Service appears to have conducted a diligent inquiry of all individuals within the 

Marshals Service who would have had access to the information referenced in the Defendants’ 

Motions. 

In one affidavit, a Marshals Service employee recounts an interview he conducted with 

the confidential informant on August 18, 2009, which explains how the David Quinn came to 

have some knowledge of the confidential informant’s role in the case. In fact, the affidavit 

clarifies the inaccurate information relayed to defense counsel and plausibly explains how David 

Quinn may have come into possession of the mistaken information he communicated to counsel 

for the Defendants. 

The in camera affidavits from United States Marshals Service employees do not bear fruit 

on any of the issues raised by the Defendants in their Motions. None of the information 

provided by the confidential informant contradicts in any material manner the testimony of the 

government’s witnesses at trial. The confidential informant has no knowledge of any 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 13 of 15
14 

psychological profiling or testing conducted on Edward Brown. In addition, there is no 

indication by the confidential informant that Elaine Brown’s behavior was being controlled by 

Edward Brown or other potentially exculpatory information about the relationship between the 

Defendants that was not known by Elaine Brown. The affidavits put to rest the issue of the 

Forseti Group and any suspicions that the confidential informant was an employee of the Forseti 

Group or any other entity at the time he worked on the Brown case. Neither the information 

offered by David Quinn or the affidavits supplied by the Government in response to the Courts 

request provide a basis upon which to impeach Deputy William S. Robertson’s trial testimony. 

It is also clear from the totality of the information provided by the Government that it was not 

then, and is not now, in possession of any exculpatory evidence under Brady or Giglio. 

Requests for information about the identity of a confidential informant and the struggle 

over entitlement to the privilege typically are fought out in motion practice and other pretrial 

proceedings. E.g., United States v. Robinson, 144 F.3d 104, 105-06 (1st Cir. 1998); United 

States v. Bibbey, 735 F.2d 619, 621 (1st Cir.1984). In recognition of the seminal case on a 

confidential informant’s privilege, pretrial evidentiary hearings devoted to this issue is known as 

a “Roviaro hearings.” The Defendants have neither asked for the Government to disclose the 

identity of the confidential informant nor made a timely request for a Roviaro hearing. Although 

the Defendants have indicated to the Court that they have attempted to interview the confidential 

informant and he was unavailable at the scheduled time, they have not asked the Court for any 

assistance to procure further communication with the confidential informant or asked for 

additional time to make that contact. 

The Court has conducted a thorough review of the documentation presented by the 

Government in response to the post-trial phone calls involving David Quinn, the confidential 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 14 of 15
15 

informant and the issues raised by the Defendants in their Motions with respect to the calls. The 

Defendants have not established the existence of any new evidence that is material to any issue at 

trial. Del-Valle, 566 F.3d at 38. Thus, there is no basis to grant the Defendants a new trial. 

II. CONCLUSION 

 The Court finds that none of the alleged errors, either alone or in combination, justifies 

the granting a new trial pursuant to Rule 33. Accordingly, the Court ORDERS that Defendant 

Elaine Brown’s Motion for New Trial and Ancillary Relief (Docket Item 176) and Defendant 

Edward Brown’s Motion for New Trial Pursuant to Fed. R. Crim. P. 33 and for Intermediate 

Relief (Document Item 177), be and they are hereby, DENIED. 

/s/George Z. Singal___________

United States District Judge 

Dated this 24th day of September, 2009. 

Case 1:09-cr-00030-GZS Document 209 Filed 09/24/09 Page 15 of 15