**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 7, 2009 

 * 8:30 a.m. 

 EDWARD and ELAINE BROWN * 

 * 

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

 DAY 6 

 MORNING 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 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 1 of 82
 2 

 1 I N D E X 

 2 

 3 Witness Direct Cross Redirect Recross 

 4 

 JAMIE BERRY 

 5 

 By Ms. Ollila 10 33 

 6 By Mr. Lange 22 

 By Mr. Iacopino 28 35 

 7 

 KENNETH NUNES 

 8 

 By Ms. Ollila 36 

 9 By Mr. Lange 47 

 By Mr. Iacopino 48 

 10 

 EDWARD BROWN 

 11 (Previously transcribed under separate cover) 

 12 

 13 

 14 Motions, page 52 

 15 

 16 

 Exhibits ID Evid. 

 17 

 Government's Exhibit No. 11g 45 

 18 Government's Exhibit No. 4g-1 52 

 Government's Exhibit No. 1a-a 53 

 19 Government's Exhibit No. 7a-1 53 

 Government's Exhibit Nos. 8b through 8w; 9a; 

 20 9b-1 through 9b-3; 

 9c-1 through 9c-12; 

 21 9d; 9e-1 through 9e-7; 

 9f-1; 11j 54 

 22 Government's Exhibit No. 1a-3 59 

 23 

 24 Defendant's Exhibit No. 2-O 23 

 25 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 2 of 82
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 1 IN CHAMBERS 

 2 THE COURT: We're in chambers. All counsel 

 3 are present. We have a juror issue. 

 4 THE CLERK: Yes, your Honor. Juror Branden 

 5 Gould, who is in seat 13, his juror number was 48, he is 

 6 the crane operator -- 

 7 THE COURT: You all remember him? 

 8 MR. HUFTALEN: Yes. 

 9 THE CLERK: He advised me this morning that 

 10 yesterday one of his employees had to leave with a 

 11 stomach hernia and is in the hospital. He is the only 

 12 person, Branden now, that can run the cranes. This is 

 13 his busy season. He's actually been very stressed 

 14 throughout this trial. He hasn't been sleeping, he's 

 15 been getting migraines because of his business, and it's 

 16 a big business, and he feels he's not staying on top of 

 17 it, so he wanted to bring that to the court's attention. 

 18 THE COURT: The obvious concern is that he's 

 19 going to want to rush. He would like to be excused. 

 20 Government's position? 

 21 MR. HUFTALEN: As much as I'd like to keep him 

 22 on the jury, I think it's a legitimate concern not only 

 23 for him personally, but the issue he alleges. 

 24 THE COURT: Defendants? Mr. Lange? Do you 

 25 want to confer outside? You're welcome to. 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 3 of 82
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 1 MR. IACOPINO: Your Honor, I have no objection 

 2 to excusing him. 

 3 THE COURT: Mr. Lange? 

 4 MR. LANGE: Nor I. 

 5 THE COURT: I didn't hear you. 

 6 MR. LANGE: Nor I. 

 7 THE COURT: I'm going to let him go. That 

 8 leaves us with one alternate. We're so close to the end 

 9 of the case, I'm not terribly concerned. What I plan to 

 10 do, even if they go deliberate, is I'll keep the 

 11 alternate in reserve, tell him not to communicate with 

 12 anyone in case someone has a problem during 

 13 deliberation. 

 14 Would you let him know he's free to go, not to 

 15 discuss this case with anyone. 

 16 THE CLERK: Yes, your Honor. That would leave 

 17 alternate number 2, Sona Hirth, will be filling in. 

 18 I'll take his notebook as well and shred it. 

 19 THE COURT: Don't have him talk to the other 

 20 jurors. 

 21 All right, let me know when we're ready. 

 22 Okay, thank you. 

 23 BEFORE THE COURT 

 24 THE COURT: Ready for the jury? Bring in the 

 25 jury. Is there something -- yes? 

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 1 MR. IACOPINO: Yes, your Honor, we thought you 

 2 were going to take a proffer from us on the Christopher 

 3 Fazio -- 

 4 THE COURT: All right, let me take a look. 

 5 Have a seat. I have testimony of Christopher; is that 

 6 correct? 

 7 MR. IACOPINO: Yes, sir. 

 8 THE COURT: Are they number one? They're not 

 9 going to be testifying right now, are they? 

 10 MR. IACOPINO: No. 

 11 THE COURT: I'll read it. 

 12 MR. IACOPINO: Thank you. 

 13 THE COURT: You have the actual video? 

 14 MR. IACOPINO: Yes, it's -- 

 15 MS. CLOUSER: Yes, we do. It's Exhibit M. 

 16 THE COURT: I'll take a look at it during the 

 17 break. How long is the video? 

 18 MS. CLOUSER: The first video is 50 minutes. 

 19 The second -- 

 20 THE COURT: 5-0? 

 21 MS. CLOUSER: 5-0. The second video is 

 22 24 minutes. 

 23 THE COURT: And you expect to play the entire 

 24 videos, both? 

 25 MS. CLOUSER: No. 

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 1 THE COURT: You have the portion redacted that 

 2 you plan to play? 

 3 MS. CLOUSER: Yes, we do. 

 4 THE COURT: How long is that? 

 5 MS. CLOUSER: That is approximately 

 6 13 minutes. 

 7 THE COURT: All right, I want that portion 

 8 available to me during our first recess. I'll take a 

 9 look at it. 

 10 MR. IACOPINO: Thank you. 

 11 THE COURT: Anything else? Let's bring in the 

 12 jury. 

 13 BEFORE THE JURY 

 14 THE COURT: Good morning, members of the jury. 

 15 Couldn't get the sun to last even another day, 

 16 unfortunately. 

 17 You know that one of the members of your jury 

 18 is not with you. He's been excused. You're not to 

 19 speculate why or have that in any way relate to what's 

 20 going on here. 

 21 We ready to proceed? 

 22 MS. OLLILA: We are, your Honor. 

 23 THE COURT: All right. You may proceed. 

 24 MS. OLLILA: Your Honor, counsel has requested 

 25 that we approach sidebar on an issue. 

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 1 THE COURT: All right. 

 2 AT SIDEBAR 

 3 MS. OLLILA: Your Honor may recall from the in 

 4 chambers conference last night that counsel objected to 

 5 this exhibit coming in. The United States had 

 6 proposed -- and specifically the objection that counsel 

 7 raised was some additional language which were not 

 8 co-conspirator statements. The additional language 

 9 includes the language contained on the top of page two 

 10 of Government's Exhibit 2i which states, why do you want 

 11 to know, and who wrote this. The United States proposes 

 12 that we redact that portion of the e-mail. Counsel has 

 13 indicated that they don't want that redacted but counsel 

 14 still does object to the admission of that e-mail. 

 15 THE COURT: Let me hear from defense counsel. 

 16 Basis of the objection. 

 17 MR. IACOPINO: It's the same objection that I 

 18 made yesterday, your Honor, in terms of it being hearsay 

 19 and not relating in any -- not being relevant in any way 

 20 to the conspiracy. The statement that they are trying 

 21 to get in through this exhibit is not the e-mail from 

 22 one of the alleged co-conspirators to another alleged 

 23 co-conspirator, but it's some body of an e-mail 

 24 apparently addressed to some person named Art Pollack. 

 25 THE COURT: Would it make a difference if they 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 7 of 82
 8 

 1 were talking to -- you're saying the difference is they 

 2 are not talking to a co-conspirator? 

 3 MR. IACOPINO: Right. We're saying it's the 

 4 manner in which it's being offered in that it says 

 5 something that was written to somebody who we don't even 

 6 know who he is makes it irrelevant to this case, your 

 7 Honor, and it's for that reason that we object. I 

 8 understand that the government's offered to redact it. 

 9 They did. However, if it's going to come in, we prefer 

 10 that it come in without the proposed redaction. 

 11 THE COURT: Mr. Lange. 

 12 MR. LANGE: I join in his arguments and only 

 13 add that I submit that this does not fall under Rule 

 14 801, that it's not a statement by a co-conspirator 

 15 during the course of the conspiracy which furthers the 

 16 conspiracy. It appears to be an e-mail written by Riley 

 17 to Gonzalez sometime after Gonzalez left. 

 18 MR. IACOPINO: And I agree with that as well, 

 19 your Honor. 

 20 THE COURT: So defense counsel is not in favor 

 21 of any redactions? 

 22 MR. LANGE: No, we object to it, but if it's 

 23 going to come in we'd ask that it not be redacted. 

 24 THE COURT: All right, I'm going to let it in. 

 25 It's a co-conspirator statement. 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 8 of 82
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 1 MS. OLLILA: And there's one final issue, your 

 2 Honor, that counsel raised with the United States 

 3 yesterday. It involves Government's Exhibit 2g. This 

 4 is also an e-mail taken from Cirino Gonzalez's e-mail 

 5 account. The only portion which the United States wants 

 6 to get in, your Honor, as a co-conspirator statement is 

 7 one line contained on page two which says, we have a war 

 8 to win and we need everybody. The United States has 

 9 offered to redact the rest of the document, the complete 

 10 document except that line, and accept the fact it was an 

 11 e-mail from Danny Riley to Cirino Gonzalez. Counsel has 

 12 indicated that if your Honor rules that this is a 

 13 co-conspirator statement, they want the entirety of that 

 14 document to come in. 

 15 THE COURT: All right, let me look at it. All 

 16 right, just for the record, the first document we were 

 17 just talking about was Government's Exhibit 2i. The 

 18 document I'm looking at now is 2g. 

 19 (Pause.) 

 20 THE COURT: All right, I don't see this as a 

 21 co-conspirator exception statement. I'm going to let it 

 22 in. 

 23 MS. OLLILA: Okay, thank you. 

 24 THE COURT: Anything else? 

 25 MS. OLLILA: Nothing further. 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 9 of 82
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 1 THE COURT: All right. 

 2 BEFORE THE JURY 

 3 THE CLERK: Just to remind you, Mr. Berry, you 

 4 are still under oath. 

 5 THE WITNESS: Yes. 

 6 DIRECT EXAMINATION cont'd 

 7 BY MS. OLLILA: 

 8 Q. Dena, please pull up Government's Exhibit 2i 

 9 and highlight the from and to section. 

 10 Deputy Berry, who is this e-mail from? 

 11 A. It's from Dan Riley. 

 12 Q. And who is it to? 

 13 A. It's to Cirino Gonzalez. 

 14 Q. When is it dated? 

 15 A. It's dated August 4th, 2007. 

 16 Q. Now, Dena, please turn to page two. And what 

 17 I want you to do is highlight that section, the first 

 18 line. 

 19 Deputy Berry, the first line starts with hum. 

 20 Can you read that? 

 21 A. Hum, everything that Ed needs real bad is. 

 22 Q. And what is the date of this e-mail? 

 23 A. August 4, 2007. 

 24 Q. Now, Deputy Berry, if you count down in that 

 25 e-mail eight lines which starts with batteries Motorola, 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 10 of 82
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 1 can you please read -- I'm sorry, six lines starting 

 2 with someone comes near, could you please read that 

 3 sentence, and Dena, highlight it starting with someone 

 4 comes near. 

 5 A. Someone comes near it, cardboard, thicker the 

 6 better, roofing nails, bigger better, black and green 

 7 spray paint, loud sirens, bullhorns, portable 12-volt 

 8 power jack, they're about 20 to $30, two-way radios, not 

 9 the ones that take Triple A batteries, Motorola 

 10 preferably, I cannot emphasize enough night vision 

 11 goggles, any reading material to do with tactical 

 12 training, hand-held scanners trunked if possible, 

 13 individual cameras hand-held, throw away cell, I believe 

 14 it's supposed to be phones, hones, with minutes and the 

 15 phone number written on it with a piece of tape, 

 16 clothesline rope, you know this hot weather is perfect 

 17 for drying outdoors and save on Ed's batteries and fuel, 

 18 parachute cord flares and flare guns, bigger better. Oh 

 19 yeah, I forgot the number one most important thing. 

 20 People to come and make a stand to their death if 

 21 necessary. 

 22 Q. Okay, stop there. Deputy Berry, let me draw 

 23 your attention to April of 2006. Dena, you can take 

 24 that down. In April of 2006 were you conducting 

 25 surveillance on Edward and Elaine Brown? 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 11 of 82
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 1 A. Yes. 

 2 Q. And was your surveillance in anticipation of 

 3 arresting Edward and Elaine Brown? 

 4 A. Yes. 

 5 Q. Who were you conducting surveillance with? 

 6 A. Deputy Ken Nunes. 

 7 Q. And how often were you conducting 

 8 surveillance? 

 9 A. I believe we did it for a few weeks every day, 

 10 Monday through Friday. 

 11 Q. What is surveillance? 

 12 A. Just watching an individual. In reference to 

 13 this we were trying to establish a pattern, see how they 

 14 lived, see how they reacted throughout the day. 

 15 Q. Did it appear based on your surveillance that 

 16 Edward Brown had a job and went to work? 

 17 A. No. 

 18 Q. Did it appear based on your surveillance that 

 19 the defendant Elaine Brown had a job and went to work? 

 20 A. Yes. 

 21 Q. Where did she go to work? 

 22 A. Her dental practice. 

 23 Q. Do you know where her dental practice is 

 24 located? 

 25 A. It's on Glen Road in Lebanon, New Hampshire. 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 12 of 82
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 1 Q. Now, after Edward and Elaine Brown left trial, 

 2 did you also have another job of surveilling -- being 

 3 surveillance in the area of their Plainfield residence? 

 4 A. Yes. 

 5 Q. And when did you approximately start that 

 6 surveillance? 

 7 A. I assisted a few times April, May and 

 8 sometimes in June and July. 

 9 Q. What did that surveillance consist of? 

 10 A. Initially it consisted of the installation of 

 11 the camera across from the driveway, and that was the 

 12 April/May time frame. 

 13 Q. How did you install a camera across from the 

 14 driveway. When you say the driveway, you're referring 

 15 to their residence? 

 16 A. Yes. 

 17 Q. How did you install a camera? 

 18 A. I -- we inserted in the woods probably a mile 

 19 from the residence, we followed basically a snowmobile 

 20 path until we came in front of the driveway. The first 

 21 camera I didn't actually see physically installed. It 

 22 was a hard drive digital camera and we would have to go 

 23 in and swap out the hard drive and the batteries every 

 24 couple days. 

 25 Q. Why did you have to swap out the hard drive 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 13 of 82
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 1 and the batteries every couple of days? 

 2 A. The hard drive can only keep so much 

 3 information and then the batteries only last so long. 

 4 Q. Now, you didn't do this with people watching 

 5 you, did you, with neighbors and the Browns seeing you, 

 6 did you? 

 7 A. No. 

 8 Q. You did it in a covert manner; is that 

 9 correct? 

 10 A. Yes. 

 11 Q. How was the quality of that first camera? 

 12 A. It was very poor. 

 13 Q. Where was the camera pointed toward? 

 14 A. It was pointing towards the driveway. 

 15 Q. At some point in time did you have to replace 

 16 that camera? 

 17 A. Yes, it was in May. 

 18 Q. May of what year? 

 19 A. 2007. 

 20 Q. Why did you have to replace that camera? 

 21 A. It actually was in a water tight container and 

 22 it wasn't water tight, it actually flooded out a couple 

 23 times. 

 24 Q. And what did you replace it with? 

 25 A. Initially we replaced it with the same camera 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 14 of 82
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 1 system but just a newer box which contained the hard 

 2 drive. 

 3 Q. And how was the quality of that second camera? 

 4 A. It was the same. We installed an additional 

 5 camera after that. 

 6 Q. So the third camera, how did you install the 

 7 third camera? 

 8 A. That one was a little bit more work. Took a 

 9 bit more team members. Our electronic surveillance unit 

 10 assisted and we started again a mile from the residence 

 11 into the woods, followed a snowmobile path, and then 

 12 installed a camera while we had a line crew who appeared 

 13 as normal telephone workers, had a bucket and 

 14 everything, on the van. It appeared to me to be a 56K 

 15 modem style older system. 

 16 Q. What does that mean? 

 17 A. It was basically an older modem. It had a 

 18 direct phone line that went to that modem which 

 19 transmitted the camera signal to a location. 

 20 Q. All the cameras that were utilized, were they 

 21 pointed at the direction of Edward and Elaine Brown's 

 22 residence -- excuse me, driveway? 

 23 A. Just the driveway. 

 24 Q. Now, with respect to that final camera, how 

 25 did that operate? 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 15 of 82
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 1 A. That operated fine. The video quality was 

 2 poor. Like I said, it's an older type modem. 

 3 Q. Why was the video quality poor? 

 4 A. Personally I believe just because it was an 

 5 older -- it was an older system. Like I said, it was 

 6 basically an older modem system and that's how it was 

 7 explained to us, that this is an older system but it 

 8 works. 

 9 Q. How is reception in that area in Plainfield, 

 10 New Hampshire? 

 11 A. Horrible. 

 12 Q. Now, is it also fair to say that you conducted 

 13 roving surveillance? 

 14 A. At times, yes. 

 15 Q. What is roving surveillance? 

 16 A. A certain area you may want to concentrate on 

 17 looking for individuals that may have to do with your 

 18 case or, you know, just kind of watching an area just to 

 19 see what's going on, times people are coming and going. 

 20 Q. When you conducted surveillance, you never 

 21 crawled up on to their property toward their house, did 

 22 you? 

 23 A. No. 

 24 Q. Did you ever see Cirino Gonzalez during your 

 25 surveillance? 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 16 of 82
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 1 A. Yes. 

 2 Q. Where did you see him? 

 3 A. One time when we were switching out the hard 

 4 drives I saw him coming down the driveway in his 

 5 vehicle. 

 6 Q. Do you remember approximately what month that 

 7 was? 

 8 A. It would have been May 2007. 

 9 Q. Dena, please pull up 26. 

 10 Deputy Berry, who is this pictured in the 

 11 photograph depicted on the monitor in Government's 

 12 Exhibit 26? 

 13 A. Cirino Gonzalez. 

 14 Q. Did something happen on July 17, 2007? 

 15 A. Yes, there was a vehicle accident. 

 16 Q. Who got into an accident in a vehicle? 

 17 A. Jason Gerhard. 

 18 Q. Whose motor vehicle was he in? 

 19 A. Elaine Brown's. 

 20 Q. What happened on July 18th? 

 21 A. July 18th Jason Gerhard went to the Lebanon 

 22 Police Department to file a stolen vehicle report. 

 23 MR. LANGE: Objection, foundation. 

 24 THE COURT: Lay a foundation. Jury disregard. 

 25 Q. Do you know how, just yes or no, do you know 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 17 of 82
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 1 what happened to Elaine Brown's vehicle on July 17th? 

 2 A. Yes. 

 3 Q. Did someone seize that vehicle? 

 4 A. Yes. 

 5 Q. Who seized it? 

 6 A. Ken Nunes and another deputy that was assigned 

 7 up there with him, I'm not sure who it was. 

 8 Q. Now, were you present at the Lebanon Police 

 9 Department on July 18th? 

 10 A. Yes. 

 11 Q. Why were you present there? 

 12 A. Lebanon PD had called. I was dropping off 

 13 supplies to Ken Nunes, and Lebanon PD had called him to 

 14 say Jason Gerhard was at the police station to file a 

 15 stolen vehicle report. 

 16 Q. Did you go to the Lebanon Police Department? 

 17 A. Yes, we did. 

 18 Q. And what did you do when you were there? 

 19 A. We spoke with Jason Gerhard. 

 20 Q. Why did you speak with him? 

 21 A. We were trying to convey a message to go home 

 22 and don't ruin your life over this. 

 23 Q. Did he threaten you? 

 24 MR. LANGE: Objection. 

 25 THE COURT: Basis? 

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 1 MR. LANGE: It's leading and also foundation. 

 2 MR. IACOPINO: It's also hearsay, your Honor. 

 3 MS. OLLILA: Co-conspirator statement, your 

 4 Honor. 

 5 THE COURT: It is leading. Ask another 

 6 question. 

 7 Q. BY MS. OLLILA: When -- how long -- 

 8 THE COURT: I'm having trouble hearing. 

 9 MS. OLLILA: Oh, I'm sorry, your Honor. I 

 10 thought I was so loud I was trying to tone it down. 

 11 Q. BY MS. OLLILA: Did you sit down with Jason 

 12 Gerhard, Deputy Berry? 

 13 A. We didn't sit down. It was kind of just 

 14 standing, talking to him. 

 15 Q. How long did your conversation last? 

 16 A. 45 minutes approximately. 

 17 Q. And just yes or no to this question. Did he 

 18 make statements to you about Edward and Elaine Brown? 

 19 A. Yes. 

 20 Q. Just yes or no to this next question. Did he 

 21 make comments to you or statements to you about your 

 22 attempts to arrest Edward and Elaine Brown? 

 23 A. Yes. 

 24 Q. What did he say? 

 25 MR. IACOPINO: Objection. 

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 1 THE COURT: Basis? 

 2 MR. IACOPINO: It's hearsay, your Honor. 

 3 THE COURT: Let me see counsel. 

 4 AT SIDEBAR 

 5 THE COURT: I think I know the answer, but let 

 6 me hear it. 

 7 MS. OLLILA: The answer is Jason Gerhard told 

 8 us that our attempts to arrest Edward and Elaine Brown 

 9 were a violation of the Constitution which constituted 

 10 treason and are therefore punishable by death. 

 11 MR. IACOPINO: I object, your Honor, it's 

 12 hearsay. It's not a statement made in furtherance of 

 13 the conspiracy, number one. Number two, it's a 

 14 statement made to a police officer, so I believe under 

 15 Crawford and the Sixth Amendment it's also inadmissible, 

 16 and on those bases I would object. 

 17 MR. LANGE: I join. 

 18 THE COURT: All right, I think it is a 

 19 statement in furtherance of the conspiracy made by a 

 20 co-conspirator and subject to Petrozziello. A statement 

 21 by a co-conspirator does not have to be made to another 

 22 co-conspirator to be within that exception. If counsel 

 23 has any case law that says that, I'd like to see it, but 

 24 I don't believe that's necessary. I see this as a 

 25 statement in furtherance of the conspiracy because it's 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 20 of 82
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 1 done to discourage attempts to arrest, attempts to scare 

 2 or intimidate the Marshal Service. Go ahead. 

 3 Overruled. 

 4 BEFORE THE JURY 

 5 Q. BY MS. OLLILA: Deputy Berry, what did Jason 

 6 Gerhard say? 

 7 A. To summarize it, if somebody violated the 

 8 rights set forth within the Constitution, it would be 

 9 considered treason and executable by death. 

 10 Q. Executable by death? 

 11 A. Yes. 

 12 Q. Where were you on June 7, 2007? 

 13 A. Farmington, New Hampshire. 

 14 Q. Why were you in Farmington, New Hampshire? 

 15 A. Conducting surveillance. 

 16 Q. Let me show you, Deputy Berry, what is marked 

 17 and has come into full evidence as Government's Exhibit 

 18 1a-3. Do you recognize what that is? 

 19 A. Yes. 

 20 Q. What is it? 

 21 A. It's a fingerprint card of Edward Lewis Brown. 

 22 Q. Where did that fingerprint card come from? 

 23 A. This would have originated from our office. 

 24 Q. And do you frequently turn those over when 

 25 requested to do so? 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 21 of 82
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 1 A. Yes. 

 2 Q. Did you turn this fingerprint card over? 

 3 A. Not personally, but -- 

 4 Q. Did your office turn it over? 

 5 A. Yes. 

 6 Q. I didn't hear that. 

 7 A. I know one was, yes. 

 8 Q. Okay. 

 9 MS. OLLILA: I believe that's it, your Honor. 

 10 May I have a moment? 

 11 (Pause.) 

 12 MS. OLLILA: Nothing further, your Honor. 

 13 THE COURT: Thank you. Cross-examination, Mr. 

 14 Lange? 

 15 MR. LANGE: Yes, your Honor. 

 16 CROSS-EXAMINATION 

 17 BY MR. LANGE: 

 18 Q. You testified about a surveillance camera that 

 19 was positioned at the end of the Brown driveway. That 

 20 camera was there on June 7, 2007; is that right? 

 21 A. Yes. 

 22 Q. And did you make recordings of the images that 

 23 were taken from that camera? 

 24 A. I didn't personally. 

 25 Q. Did you or someone working in your office make 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 22 of 82
 23 

 1 such recordings? 

 2 A. I believe that that camera was set up straight 

 3 to a DVR. 

 4 Q. So that someone could record off a DVR? 

 5 A. Yes. 

 6 MR. LANGE: Your Honor, at this time I offer 

 7 Defendant's Exhibit 2-O. It's a clip from the 

 8 surveillance video. 

 9 MS. OLLILA: No objection, your Honor. 

 10 MR. LANGE: I'd ask that it be played. 

 11 THE COURT: Exhibit 2-O is admitted without 

 12 objection. 

 13 (Defendant's Exhibit 2-O admitted.) 

 14 Q. BY MR. LANGE: Deputy Berry, this is just a 

 15 clip. This is not the whole -- 

 16 A. Yes, sir. 

 17 MS. OLLILA: Your Honor, this is just going to 

 18 take a moment to load up. 

 19 THE COURT: That will be fine. 

 20 Q. BY MR. LANGE: There's no audio in this; is 

 21 that right? 

 22 A. There's no audio. 

 23 Q. Do you actually know where the camera was 

 24 positioned? 

 25 A. Yes. 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 23 of 82
 24 

 1 Q. How far back from Center of Town Road was the 

 2 camera? 

 3 A. Maybe 15 feet back. 

 4 Q. You're aware that an effort was made to arrest 

 5 Ed Brown at the driveway particularly on the morning of 

 6 June 7? 

 7 A. Yes. 

 8 Q. Are you aware of who came in front of the 

 9 camera at some point around 8 or 8:30 that morning? 

 10 A. Yes, Danny Riley. 

 11 (Video clip being played.) 

 12 Q. I take it that there are some skipping in 

 13 this. It does not take a continuous image? 

 14 A. I'm not sure how it was set up. Because it 

 15 was an older system I think the data stream was probably 

 16 a little slow. 

 17 Q. There was some motion in there at the lower 

 18 left corner. 

 19 A. Yes. 

 20 Q. Do you know what that was? 

 21 A. I take it it was a person. 

 22 Q. What -- is the camera looking in the direction 

 23 of the driveway? 

 24 A. Yes. On the right you can see the three 

 25 trees. The driveway I believe is right there. 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 24 of 82
 25 

 1 Q. Now we're seeing some figures directly in 

 2 front of the camera? 

 3 A. Yes. 

 4 (Video clip still playing.) 

 5 Q. Is the driveway just the light area? 

 6 A. Yes. Just left to the trees I believe is the 

 7 driveway. 

 8 Q. A little right of center of the image? 

 9 A. Ah-hum, yes. 

 10 Q. When you see something in that driveway area, 

 11 please let us know. 

 12 (Video clip still playing.) 

 13 A. I see a dog. 

 14 Q. That's also known as Zoe? 

 15 A. Yes. 

 16 Q. She's moving from the right side of the image. 

 17 Now there's a figure behind the tree? 

 18 A. Yes. 

 19 Q. That turns out to be Daniel Riley? 

 20 A. Yes. 

 21 (Video clip continuing to play.) 

 22 Q. What's moving across the image now? 

 23 A. Daniel Riley coming down the driveway with the 

 24 dog Zoe. 

 25 Q. He appears to be approaching the agents that 

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 26 

 1 are hidden in the woods? 

 2 A. Yes. 

 3 Q. Can you tell what's in his hand? 

 4 A. I can't, but I heard it was a coffee cup. 

 5 Q. There's motion off to the left. Appears to be 

 6 the dog? 

 7 A. Yes. 

 8 Q. He appears to have his left hand raised over 

 9 his eyes at some point? 

 10 A. Yes. 

 11 Q. Fair to say the dog is coursing back and forth 

 12 in front of the camera? 

 13 A. Yes. 

 14 Q. We don't see any motion from the agents or the 

 15 marshals at this point, do we? 

 16 A. No. 

 17 (Video clip still playing.) 

 18 Q. Is there any way to tell how long this 

 19 sequence takes in realtime that you're aware of? 

 20 A. I have no idea. 

 21 Q. Mr. Riley seems to be doing the classic 

 22 looking for something pose there with his hands over his 

 23 eyes? 

 24 A. Yes. 

 25 Q. Now we're seeing motion in the front, and 

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 27 

 1 that's the back of one of the marshals? 

 2 A. Yes. 

 3 Q. Where's Mr. Riley at that point? 

 4 A. Up the driveway. 

 5 Q. Appears to be at least two uniformed personnel 

 6 going after Mr. Riley? 

 7 A. Seems to be a few people there. It's hard to 

 8 tell. 

 9 Q. Now, there was no other camera positioned 

 10 along the driveway, is that right, on June 7th? 

 11 A. I believe there was still another one there, 

 12 but I don't think it was operational. It was motion 

 13 sensored. 

 14 Q. So the only image that we might have as to 

 15 what occurred between Mr. Riley and the agents around 

 16 this time is the photo we're looking at now? 

 17 A. Yes. 

 18 (Video clip still playing.) 

 19 Q. I take it that that's one of the deputies 

 20 going up the driveway to the cleared area? 

 21 A. Yes. 

 22 MR. LANGE: Your Honor, at this point there's 

 23 additional portions if the government wants to look at 

 24 it or someone wishes to see it. My point has been made. 

 25 THE COURT: All right. We can end it now, 

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 28 

 1 then, if that's what I'm hearing. 

 2 MR. LANGE: I don't have anymore questions, 

 3 thank you. 

 4 THE COURT: Thank you. Mr. Iacopino, 

 5 questions? 

 6 MR. IACOPINO: Yes, thank you, your Honor. 

 7 CROSS-EXAMINATION 

 8 BY MR. IACOPINO: 

 9 Q. Good afternoon -- good morning, deputy. 

 10 A. Good morning. 

 11 Q. You indicated that you were involved in 

 12 surveilling the Browns prior to their arrest on the tax 

 13 case in May of 2006? 

 14 A. Yes, sir. 

 15 Q. All right. And were you involved on the day 

 16 of their arrest in the tax case in May of 2006? 

 17 A. Yes, I was, sir. 

 18 Q. Had you been involved previously in assisting 

 19 the Internal Revenue Service with conducting a search of 

 20 the dental practice in Lebanon in 2004? 

 21 A. No, sir. 

 22 Q. Are you aware of that search? 

 23 A. Yes, sir. 

 24 Q. And was that made known to your agency? 

 25 A. Yes. 

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 29 

 1 Q. And did you have any role in that at all 

 2 through communications or any other role? 

 3 A. In the 2004 search? 

 4 Q. Yes. 

 5 A. No. 

 6 Q. Do you know how many agents were involved in 

 7 that search? 

 8 A. I have absolutely no idea. 

 9 Q. Let me take you back, then, to the time prior 

 10 to the May 2006 arrest of Mr. and Mrs. Brown. 

 11 You indicated that you conducted some 

 12 surveillance; is that correct? 

 13 A. Yes, sir. 

 14 Q. And on one day during that surveillance you 

 15 were in the vicinity of the Brown property when Mr. 

 16 Brown was mowing his lawn; correct? 

 17 A. The residence, sir? 

 18 Q. Was it the residence or was it the office? 

 19 A. The office, I did see him doing some yard work 

 20 there, yes, sir. 

 21 Q. And on that occasion he was all by himself; 

 22 correct? 

 23 A. Yes, sir. 

 24 Q. Just out there working, minding his own 

 25 business; right? 

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 30 

 1 A. Yes, sir. 

 2 Q. You had a warrant for his arrest; correct? 

 3 A. Yes, sir. 

 4 Q. And you called in to your superior and said I 

 5 think I can go up and arrest him right now, didn't you? 

 6 A. Yes. 

 7 Q. But you were told not to? 

 8 A. Yes, we were told not to. 

 9 Q. And instead what happened was your superiors 

 10 developed this ruse that was conducted on May 6th to 

 11 have Mr. Brown come down to West Lebanon; correct? 

 12 A. Yes. 

 13 Q. And there were a number of agents from 

 14 different agencies involved in that; correct? 

 15 A. It was all Marshal Service personnel. 

 16 Q. I'm sorry, but you brought in marshals from 

 17 other jurisdictions as well; correct? 

 18 A. Yes. 

 19 Q. You had snipers up on the hill; correct? 

 20 A. No. 

 21 Q. No? 

 22 A. I was up on the hill that day. 

 23 Q. Okay. You had an arrest team and a transport 

 24 team and the surveillance team all in place; isn't that 

 25 correct? 

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 1 A. Yes. 

 2 Q. How many total agents to arrest Mr. Brown on 

 3 May 6th? 

 4 A. Arresting agents would have been four. We had 

 5 four as an over watch, and then there was probably four 

 6 transport people. 

 7 Q. So that, by my brief count, is 12? 

 8 A. 12. 

 9 Q. Were there any more than that? Anybody doing 

 10 surveillance or anybody else involved? 

 11 A. There could have been some surveillance teams, 

 12 but I just really can't recall. 

 13 Q. What about local or state police, were they 

 14 involved? 

 15 A. I know Lebanon Police Department had two 

 16 cruisers there. 

 17 Q. Now, sir, you testified about this incident 

 18 with Jason Gerhard where you saw him at the -- was it 

 19 the Lebanon Police Department? 

 20 A. Yes, sir. 

 21 Q. As a Deputy United States Marshal, do you 

 22 receive training in the United States Code, the law of 

 23 the United States, federal law? 

 24 A. Yes. 

 25 Q. And you're aware, sir, aren't you, that 18 -- 

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 32 

 1 Title 18, Section 2381 is in fact a law that makes 

 2 treason illegal? 

 3 A. I would need to see the code. 

 4 MR. IACOPINO: May I approach, your Honor? 

 5 THE COURT: Yes. 

 6 Q. BY MR. IACOPINO: Let me show you 18, United 

 7 States Code, Section 2381, deputy. 

 8 A. Yes, sir. 

 9 Q. And is that in fact the law that makes treason 

 10 illegal in the United States? 

 11 A. Yes. 

 12 Q. And in fact does the law state what the 

 13 penalty for treason is? 

 14 A. Yes. 

 15 Q. And what is it? 

 16 A. Let's see, the United States -- guilty of 

 17 treason shall suffer death or shall be in prison not 

 18 less than five years and fined under this title but not 

 19 less than $10,000. 

 20 Q. So when Mr. Gerhard said to you that the 

 21 penalty for treason is death, it was a correct statement 

 22 of the law as you just read it; isn't that correct? 

 23 A. Yes. 

 24 Q. And you weren't afraid of that statement, were 

 25 you? 

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 33 

 1 A. Not for myself, no. 

 2 MR. IACOPINO: Thank you. I have nothing 

 3 further, your Honor. 

 4 THE COURT: Government? 

 5 REDIRECT EXAMINATION 

 6 BY MS. OLLILA: 

 7 Q. Deputy Berry, at the time Jason Gerhard went 

 8 to the Lebanon Police Department on July 18, 2007, how 

 9 long had it been since Ed Brown left trial on the tax 

 10 evasion charges? 

 11 MR. IACOPINO: Objection, beyond the scope. 

 12 THE COURT: Overruled. 

 13 THE WITNESS: Approximately seven months. 

 14 Q. Were there arrest warrants out for Edward and 

 15 Elaine Brown? 

 16 A. Yes. 

 17 Q. Is it your job to effectuate arrest warrants? 

 18 A. Yes. 

 19 Q. Were you engaged in treason, Deputy Berry? 

 20 A. No. 

 21 Q. Now, Mr. Iacopino just questioned you about 

 22 how many officers were there to effectuate the arrest 

 23 warrants of Edward and Elaine Brown in May of 2006. You 

 24 recall his questions? 

 25 A. Yes. 

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 34 

 1 Q. And he asked you a question about whether or 

 2 not you saw Ed Brown mowing the lawn before May 24th. 

 3 Do you recall that question? 

 4 A. Yes. 

 5 Q. While you were doing surveillance of Ed Brown, 

 6 did you ever see him with weapons? 

 7 A. Yes. 

 8 Q. How often did you see him with weapons? 

 9 A. Every time we saw him. 

 10 Q. Did you ever look in his car? 

 11 A. Yes. 

 12 Q. Did you look in it from outside? 

 13 A. Yes. 

 14 Q. Did you ever open the door to get into his 

 15 car? 

 16 A. No. 

 17 Q. When you would looked in it, what was there? 

 18 A. There was a rifle. 

 19 Q. Why didn't you attempt to arrest him when he 

 20 was mowing the lawn? 

 21 A. There was safety concerns because he was 

 22 armed. 

 23 Q. And how many men did you have with you that 

 24 day when you saw him mowing the lawn? 

 25 A. Myself and Ken Nunes. 

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 35 

 1 Q. You had two men; is that correct? 

 2 A. Yes. 

 3 MS. OLLILA: Nothing further, your Honor. 

 4 THE COURT: Thank you. Mr. Lange? 

 5 MR. LANGE: Nothing further. 

 6 THE COURT: Thank you. Mr. Iacopino? 

 7 RECROSS-EXAMINATION 

 8 BY MR. IACOPINO: 

 9 Q. You were aware on that day when you called in 

 10 and asked for permission to arrest Mr. Brown that he 

 11 carried a weapon as a matter of course; isn't that 

 12 correct? 

 13 A. Yes. 

 14 Q. But you called in anyway, didn't you, to get 

 15 permission to make the arrest? 

 16 A. Yes. 

 17 Q. Because you felt you could reasonably do it; 

 18 isn't that correct? 

 19 A. At the time, yes. 

 20 MR. IACOPINO: Thank you. 

 21 THE COURT: Government? 

 22 MS. OLLILA: Nothing further. 

 23 THE COURT: Thank you. Mr. Lange? 

 24 MR. LANGE: Nothing further. 

 25 THE COURT: Thank you. You may step down. 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 35 of 82
 36 

 1 Call your next witness, please. 

 2 MS. OLLILA: The United States calls Deputy 

 3 Ken Nunes. 

 4 THE CLERK: Please raise your right hand. 

 5 KENNETH NUNES 

 6 having been duly sworn, testified as follows: 

 7 THE CLERK: Please be seated. And for the 

 8 record, if you'd please state your name and spell your 

 9 name. 

 10 THE WITNESS: My name is Kenneth Nunes. The 

 11 last name N-U-N-E-S. 

 12 THE COURT: You may proceed. 

 13 MS. OLLILA: Thank you, your Honor. 

 14 DIRECT EXAMINATION 

 15 BY MS. OLLILA: 

 16 Q. Sir, how are you employed? 

 17 A. Currently I'm the senior inspector with the 

 18 United States Marshal Service. 

 19 Q. What's a senior inspector? 

 20 A. I work for the Investigative Operations 

 21 Division which is a division that specializes in 

 22 fugitive investigations within the Marshal Service. 

 23 Q. And what district do you work in? 

 24 A. Currently I'm not -- I don't work in a 

 25 district, I work directly for headquarters. We're a 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 36 of 82
 37 

 1 division of the Marshal Service in general, so I'm not 

 2 assigned to a specific district. 

 3 Q. Were you employed in the same capacity in the 

 4 year 2006? 

 5 A. No. In 2006 I was a deputy in the District of 

 6 New Hampshire. 

 7 Q. What were your duties in 2006 as a deputy in 

 8 this district? 

 9 A. In 2006 my duties would have been the general 

 10 duties of a Deputy United States Marshal which would 

 11 include fugitive investigation, witness protection, 

 12 asset forfeiture, court responsibilities, et cetera. 

 13 Q. In April of 2006 were you tasked with 

 14 conducting surveillance on Edward and Elaine Brown? 

 15 A. Yes. 

 16 Q. Why? 

 17 A. We received a request from the IRS for 

 18 assistance with executing an arrest warrant on Edward 

 19 and Elaine Brown. So at that time one of the first 

 20 things we did was, you know, surveillance. 

 21 Q. When you say one of the first things we did, 

 22 who is we? 

 23 A. It was myself and other deputies in the 

 24 district. 

 25 Q. And who would some of those other deputies be? 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 37 of 82
 38 

 1 A. Jamie Berry, Jeffrey White. Those are the two 

 2 other main guys that helped on that. 

 3 Q. How long did you engage in surveillance of 

 4 Edward and Elaine Brown? 

 5 A. In 2 -- early 2006 it was probably a month to 

 6 a month and a half. 

 7 Q. And by way of surveillance that means 

 8 following them around in a covert fashion? 

 9 A. Yes. It was covert surveillance, so we were, 

 10 you know, attempting to remain hidden, to try and 

 11 observe different patterns, to try and ascertain, you 

 12 know, some background and what, you know, possibly 

 13 develop a plan. 

 14 Q. And did you see Edward and Elaine Brown while 

 15 you conducted surveillance? 

 16 A. Yes, we did. 

 17 Q. Did you ever see Edward Brown with a weapon on 

 18 him? 

 19 A. Yes. 

 20 Q. How often? 

 21 A. Every time that I observed him and was close 

 22 enough to see, I was able to see a weapon in his 

 23 waistband. 

 24 Q. And did you ever go up to his vehicle while he 

 25 was not in it and look inside? 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 38 of 82
 39 

 1 A. I did. 

 2 Q. Did you ever open the door to the vehicle? 

 3 A. No. 

 4 Q. What would you see when you looked inside? 

 5 A. He was carrying an M1 carbine which is a 

 6 military type, you know, World War II career military 

 7 type rifle that fires a 30 carbine round. It was with a 

 8 long wooden shoulder stock. It was in between the two 

 9 seats where the console is, in between but visible 

 10 through the window. 

 11 Q. All right. Now let me direct your attention 

 12 to July 2007. Are you aware that in July 2007 there 

 13 were arrest warrants for Edward and Elaine Brown? 

 14 A. Yes, there were. 

 15 Q. And was this after their tax evasion trial? 

 16 A. Yes. 

 17 Q. Did something happen on July 17, 2007? 

 18 A. It did. 

 19 Q. What happened on that date? 

 20 A. (No response.) 

 21 Q. Was there a motor vehicle accident? 

 22 A. There was. There was a -- we were called to 

 23 the parking lot of the Ninety Nine Restaurant in 

 24 Lebanon, New Hampshire, by a sergeant with Lebanon 

 25 police, and he called and said you might want to come 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 39 of 82
 40 

 1 over here. Elaine Brown's vehicle was just in an 

 2 accident. 

 3 Q. Who was in Elaine Brown's vehicle when there 

 4 was an accident? 

 5 A. It was a subject that we identified as Jason 

 6 Gerhard and two other females. 

 7 Q. Had you ever seen Jason Gerhard prior to that 

 8 date, July 17, 2007? 

 9 A. Yes, I had. 

 10 Q. Where had you seen him, Deputy Nunes? 

 11 A. I observed him at the commercial dental 

 12 property in Lebanon, New Hampshire. I had also observed 

 13 him at the Plainfield Police Department. 

 14 Q. Dena, please pull up 26-a. Deputy Nunes, if 

 15 you look at your monitor to your left. Who is depicted 

 16 in the photograph in Government's Exhibit 26a? 

 17 A. That's Jason Gerhard. 

 18 Q. Now, after the motor vehicle accident on 

 19 July 17th, 2007, were you at the Lebanon Police 

 20 Department the following day, July 18th, 2007? 

 21 A. Yes. We received a call from one of the 

 22 officers at Lebanon PD and he informed us that Jason was 

 23 at the PD in the lobby attempting to file a stolen 

 24 vehicle report. 

 25 Q. Well, when Elaine Brown's vehicle was in a car 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 40 of 82
 41 

 1 accident the day before on July 17th, what happened to 

 2 the car, did someone seize it? 

 3 A. Yes, we seized it. 

 4 Q. When you say we, who do you mean? 

 5 A. The U.S. Marshals. Myself and my partner that 

 6 day. 

 7 Q. Now, when Jason Gerhard showed up at the 

 8 Lebanon Police Department the following day on the 

 9 18th of July, did you meet with him? 

 10 A. Yes. 

 11 Q. Were there other officers present? 

 12 A. Yes, there were three other deputies and there 

 13 was also a Lebanon police officer in the lobby. 

 14 Q. All right, now, the next series of questions I 

 15 just want yes or no answers to. 

 16 Did you speak with Jason Gerhard? 

 17 A. Yes. 

 18 Q. Did he speak with you? 

 19 A. Yes. 

 20 Q. Did he say anything to you, just yes or no, 

 21 about your efforts to arrest Edward and Elaine Brown? 

 22 A. Yes. 

 23 Q. What did he say to you about your efforts? 

 24 MR. LANGE: Objection. 

 25 MR. IACOPINO: Same objection we made, your 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 41 of 82
 42 

 1 Honor, before at sidebar. 

 2 THE COURT: Let me see counsel. 

 3 AT SIDEBAR 

 4 THE COURT: What is the expected answer? 

 5 MS. OLLILA: The expected answer is that what 

 6 we were doing was a violation of the Constitution which 

 7 constituted treason punishable by death. 

 8 THE COURT: Same objections? 

 9 MR. LANGE: Yes. 

 10 MR. IACOPINO: Same objection. I'd also 

 11 object, your Honor, this is unnecessarily cumulative and 

 12 in violation of 403 in that it's the same testimony of 

 13 the witness that they just previously put on and that 

 14 any probative value of it coming in through this witness 

 15 is vastly outweighed by the cumulative and the unfair 

 16 prejudicial cumulative effect. 

 17 MR. LANGE: I join. 

 18 THE COURT: All right. It's overruled. 

 19 BEFORE THE JURY 

 20 Q. BY MS. OLLILA: Deputy Nunes, what did Jason 

 21 Gerhard say to you? 

 22 A. Well, when we entered the lobby -- 

 23 THE COURT: The question is what did he say to 

 24 you. 

 25 Q. With respect to your attempts to arrest Edward 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 42 of 82
 43 

 1 and Elaine Brown, what did he say to you? 

 2 A. He said that we were not following the 

 3 Constitution by attempting to arrest Ed and Elaine. 

 4 Q. What else did he say? 

 5 A. Well, I responded to that. 

 6 Q. Okay, and then what did he say? 

 7 A. He said that we were seen as enemies of the 

 8 Constitution and that would be considered treason, and 

 9 the penalty for treason was death. 

 10 Q. Deputy Nunes, were you conducting surveillance 

 11 of Danny Riley in July of 2007? 

 12 A. Yes. 

 13 Q. Excuse me, and were you conducting 

 14 surveillance of Danny Riley in August of 2007? 

 15 A. Yes. 

 16 Q. Did you at some point surveil him to a 

 17 Wal-Mart? 

 18 A. Yes. 

 19 Q. What happened? 

 20 A. We followed the vehicle he was driving into 

 21 the parking lot. Parked in the parking lot. Observed 

 22 him exit the vehicle, enter the Wal-Mart. He returned 

 23 out of the store to his vehicle. He was carrying 

 24 something at that time. We were far enough where we 

 25 couldn't see exactly what he was carrying. He got in 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 43 of 82
 44 

 1 his vehicle and he made a couple other stops. 

 2 Q. And do you recall what month this occurred in? 

 3 A. I think this was some time in August. 

 4 Q. And did you enter the Wal-Mart in attempt to 

 5 find out where Danny Riley went? 

 6 A. At the conclusion of the surveillance that day 

 7 we did. 

 8 Q. And where did you go inside the Wal-Mart? 

 9 A. To the photo developing area. 

 10 Q. And did you gain anything or get anything from 

 11 the photo developing area? 

 12 A. Yes, we did. 

 13 Q. Were the employees helpful and able to speak 

 14 with you without a problem? 

 15 A. They were. 

 16 Q. Let me show you what's marked as Government's 

 17 Exhibit 11g for identification. Do you recognize what 

 18 that photograph is of? 

 19 A. Yes, I do. 

 20 Q. What is it of? 

 21 A. It's a photo of Ed and Elaine Brown. 

 22 Q. How did you get it? 

 23 A. We obtained it from the Wal-Mart kiosk which 

 24 is a fancy printer that you put a memory card in. 

 25 Q. Is that picture a fair and accurate depiction 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 44 of 82
 45 

 1 of the photograph you obtained that day in August of 

 2 2007? 

 3 A. Yes, that looks like the exact photograph we 

 4 obtained. 

 5 MS. OLLILA: Your Honor, the United States 

 6 moves 11g into evidence. 

 7 MR. IACOPINO: Objection, irrelevant. 

 8 THE COURT: Overruled. 

 9 MR. LANGE: Objection -- 

 10 THE COURT: Same objection? Overruled. 

 11 (Government's Exhibit 11g admitted.) 

 12 MS. OLLILA: Dena, please bring up 11g. 

 13 Q. BY MS. OLLILA: Deputy Berry, who is this a 

 14 photograph of? 

 15 A. This is a photograph of Edward and Elaine 

 16 Brown. 

 17 Q. Does Edward Brown appear to have something 

 18 tucked into his pants? 

 19 A. He does. 

 20 Q. What is tucked into his pants? 

 21 A. A pistol. 

 22 Q. Now, let me just back you up one more time. 

 23 In March of 2006, March 24th, 2006, did you 

 24 accompany members of the probation department to the 

 25 Brown residence? 

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 46 

 1 A. I did. 

 2 Q. Were you there to assist members of the 

 3 probation office? 

 4 A. Yes. 

 5 Q. Were you let inside the residence? 

 6 A. Yes, we were. 

 7 Q. Did you go into the master bedroom? 

 8 A. Yes. 

 9 Q. Did you go into a safe -- or was a safe opened 

 10 in the master bedroom? 

 11 A. There was a safe there, yes. 

 12 Q. Did someone open it? 

 13 A. Yes. 

 14 Q. Who opened it? 

 15 A. Elaine Brown. 

 16 Q. Was there money in that safe? 

 17 A. There was. 

 18 Q. What did the money look like to you. Can you 

 19 describe it by identifying how large it was? 

 20 A. It was on the bottom shelf of the safe, and 

 21 from where I was standing it appeared to be a cube, 

 22 probably a foot by a foot and some depth, I couldn't see 

 23 how deep the cube would have been. 

 24 Q. Was it in a bag? 

 25 A. It was -- it wasn't -- it didn't appear to be 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 46 of 82
 47 

 1 a bag. It appeared to be some type of shrink wrap type 

 2 plastic around it. 

 3 MS. OLLILA: I have no further questions, your 

 4 Honor. 

 5 THE COURT: Thank you. Cross-examination, Mr. 

 6 Lange. 

 7 CROSS-EXAMINATION 

 8 BY MR. LANGE: 

 9 Q. What you just described, did you take it out 

 10 of the safe? 

 11 A. No. 

 12 Q. Did you make any effort to open the bag? 

 13 A. No. 

 14 Q. Did you photograph the bag? 

 15 A. I did not. 

 16 Q. Did anybody else who was there with you 

 17 photograph the bag? 

 18 A. I believe there is a photograph of it, but -- 

 19 Q. Have you seen the photograph? 

 20 A. Yes. 

 21 Q. And where did you see the photograph? 

 22 A. I believe it was in the series of photographs 

 23 that somebody took of the search in general that day. 

 24 Q. So you think that there's a photograph of the 

 25 search done on March 24th of 2006 which will show what 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 47 of 82
 48 

 1 you just described? 

 2 A. I believe so. 

 3 MR. LANGE: Thank you. 

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

 5 Iacopino, questions? 

 6 CROSS-EXAMINATION 

 7 BY MR. IACOPINO: 

 8 Q. Let me get something straight, deputy. The 

 9 role the United States Marshals were to play on that day 

 10 where you claim to have seen this cube is to assist 

 11 probation in removing any firearms from the home; 

 12 correct? 

 13 A. Yes. 

 14 Q. Your role was not to search the Browns' 

 15 residence, was it? 

 16 A. Our role was to insure that there were no 

 17 dangers there present while probation carried out their 

 18 duties. 

 19 Q. And it was probation's obligation to take the 

 20 firearms; correct? 

 21 A. Yes. 

 22 Q. And in fact, probation was further ordered by 

 23 the magistrate judge in that case to take those firearms 

 24 to a gun shop in Hooksett, New Hampshire, for 

 25 safekeeping; correct? 

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 49 

 1 A. I believe that's where the firearms ended up, 

 2 yes. 

 3 Q. You weren't tasked in taking pictures or doing 

 4 any other kind of search on that day, were you? 

 5 A. We would have been responsible to insure that 

 6 there were no dangers in the residence, and part of that 

 7 would have been accomplished by a search. 

 8 Q. It wouldn't be accomplished by taking pictures 

 9 of anything, though; would it? 

 10 A. No. 

 11 Q. Let me bring you back to I think it was 

 12 identified as being in July of 2007 when you had the 

 13 contact with Mr. Gerhard. 

 14 You weren't at the Lebanon Police Department 

 15 when Mr. Gerhard arrived there; correct? 

 16 A. Correct. 

 17 Q. You received a call from somebody at the 

 18 Lebanon Police Department and you responded? 

 19 A. Yes. 

 20 Q. And it wasn't just you -- I take it at the 

 21 time it's fair to say Deputy Berry was pretty much your 

 22 partner? 

 23 A. He was that day, he was up there that day, 

 24 yes. 

 25 Q. So it wasn't just you and Deputy Berry that 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 49 of 82
 50 

 1 responded to the Lebanon Police Department, but there 

 2 was another group of marshals that responded as well? 

 3 A. There were four of us together at the time 

 4 that responded over there. 

 5 Q. And you responded there because Mr. Gerhard 

 6 wanted to make a stolen motor vehicle report; correct? 

 7 A. Correct. 

 8 Q. And the Lebanon police officers simply could 

 9 have taken that report and provided you with a copy of 

 10 it; isn't that correct? 

 11 A. Yes. 

 12 Q. It's not your role as the United States 

 13 Marshal to take a stolen motor vehicle report, is it? 

 14 A. No. 

 15 MR. IACOPINO: Nothing further, your Honor. 

 16 THE COURT: Thank you, Mr. Iacopino. 

 17 Government? 

 18 MS. OLLILA: Nothing further, your Honor. 

 19 THE COURT: Thank you. Mr. Lange? 

 20 MR. LANGE: No, thank you. 

 21 THE COURT: You may step down. Thank you. 

 22 MR. HUFTALEN: May we approach? 

 23 THE COURT: Of course. 

 24 AT SIDEBAR 

 25 THE COURT: Yes? 

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 1 MR. HUFTALEN: Subject to a few housekeeping 

 2 matters dealing with exhibits, a stipulation and asking 

 3 you to take judicial notice of one thing, the government 

 4 intends to rest at this point. 

 5 MR. LANGE: What's the judicial notice? 

 6 MR. HUFTALEN: Title 26, Section 1, based upon 

 7 your comments in your opening which I have at the table 

 8 where you, I believe, and I will paraphrase, state that 

 9 there's no clear statutory authority that Elaine could 

 10 look at that was in black and white that allowed her to 

 11 understand that there was an income tax. 

 12 MR. LANGE: I don't know if that's judicial 

 13 notice. I think it would be a jury instruction. 

 14 THE COURT: So you want me to excuse the jury 

 15 and deal with this in open court? 

 16 MR. HUFTALEN: I think so. And I'll do the 

 17 Rule 29 also. 

 18 THE COURT: Very good. 

 19 IN OPEN COURT 

 20 THE COURT: All right, ladies and gentlemen, 

 21 I'm going to excuse you at this time. Probably going to 

 22 be around a half hour. I've got some legal issues I 

 23 need to attend to. We will call you back after that. 

 24 This will constitute your mid-morning break. 

 25 (Jury exited the courtroom.) 

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 1 THE COURT: You may be seated. Mr. Huftalen. 

 2 MR. HUFTALEN: Thank you, your Honor. I 

 3 believe it was yesterday, if it wasn't yesterday it was 

 4 the day previous, the government introduced an exhibit 

 5 which was the U.S. Marshal Service video sweep of the 

 6 property -- it wasn't yesterday, a couple days ago -- 

 7 second video showing a sweep of the property we played 

 8 without the audio. I have today Government's Exhibit 

 9 4g-1 which we'd like to offer as the exhibit that will 

 10 go to the jury and not the one that had the audio. 

 11 THE COURT: All right. And there's no 

 12 objection to that, is that correct? 

 13 MR. LANGE: Correct. 

 14 THE COURT: All right. And hearing no 

 15 objection this will replace the other one for purposes 

 16 of going to the jury, but we will retain the G exhibit. 

 17 (Government's Exhibit 4g-1 admitted.) 

 18 MR. HUFTALEN: Likewise with Exhibit 1a-a 

 19 which is the undercover video of the arrest, I have a 

 20 copy that has no audio, and we'd offer to substitute 

 21 this for the previously marked and I believe admitted 

 22 copy of that video. 

 23 THE COURT: Is that without objection? 

 24 MR. LANGE: Without objection. 

 25 THE COURT: All right, submitted and it will 

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 53 

 1 replace the other. 

 2 (Government's Exhibit 1a-a admitted.) 

 3 MR. HUFTALEN: I thought yesterday that I had 

 4 offered Government's Exhibit 7a-1 which is a Tannerite 

 5 instructional DVD that was actually played or a 

 6 significant portion of it was played. I am told that 

 7 what I offered was 7a-1a which is a copy of the 

 8 instructional DVD that had been in the box and had been 

 9 to the lab and was covered with dust powder. I'd offer 

 10 Government Exhibit 7a-1 which is in fact the DVD that 

 11 was played yesterday, and I understand that's without 

 12 objection as well. 

 13 THE COURT: Is that to replace the other 

 14 exhibit or in addition to? 

 15 MR. HUFTALEN: In addition to. 

 16 THE COURT: Any objection? 

 17 MR. LANGE: No, your Honor. 

 18 MR. IACOPINO: No, your Honor. 

 19 THE COURT: Without objection it's admitted. 

 20 (Government's Exhibit 7a-1 admitted.) 

 21 MR. HUFTALEN: Additionally, your Honor, we 

 22 have one stipulation that I will mark as the 

 23 government's next sequentially numbered exhibit. 

 24 THE COURT: What number would that be? 

 25 THE CLERK: 46, your Honor. 

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 54 

 1 THE COURT: 46. 

 2 MR. HUFTALEN: And I'd like to read it into 

 3 the record and make it an exhibit as well. 

 4 THE COURT: All right, you'll have to do that 

 5 in front of the jury, but go ahead. 

 6 MR. HUFTALEN: So the court knows, it's 

 7 captioned in this case and reads: Stipulation. The 

 8 government and both defendants, Edward Brown and Elaine 

 9 Brown, through respective undersigned counsel stipulate 

 10 that Government Exhibits 8b, 8c, 8d, 8e, 8f, 8g, 8h, 8i, 

 11 8j, 8k, 8l, 8m, 8n, 8o, 8p, 8q, 8r, 8s, 8t, 8u, 8v, 8w, 

 12 9a, 9b-1, 9b-2, 9b-3, 9c-1 through 9c-10, 9c-11, 9c-12, 

 13 9d, 9e-1 through 9e-7, 9f-1 and 11j all contain 

 14 gunpowder, and then it has signatures of all counsel. 

 15 THE COURT: All right. Is that agreed to by 

 16 all counsel? 

 17 MR. LANGE: Agreed to by me, your Honor. 

 18 MR. IACOPINO: Yes, your Honor. 

 19 THE COURT: All right. 

 20 MR. HUFTALEN: Earlier -- 

 21 THE COURT: That is admitted without 

 22 objection. Again, Mr. Huftalen, as soon as the jury 

 23 comes back, read that to them. 

 24 MR. HUFTALEN: I will, thank you. 

 25 (Government's Exhibits mentioned 

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 1 above admitted.) 

 2 MR. HUFTALEN: Earlier in the proceedings the 

 3 government had moved to strike as surplusage three 

 4 enumerated paragraphs in the indictment. That was done 

 5 without objection. Those paragraphs were paragraph 10C, 

 6 10E and 10F. 

 7 THE COURT: 10C, 10E and 10F. 

 8 MR. HUFTALEN: E as in Edward, F as in frank. 

 9 At this point, without objection, I move to strike some 

 10 additional limited language which I have highlighted and 

 11 will give to the deputy clerk so there's no mistake. 

 12 What I propose to strike, generally, and I'll 

 13 read it in a moment, is some identifying information 

 14 with respect to the Colt firearm that there's been 

 15 testimony concerning Mr. Brown holding, and the Glock 

 16 firearm that was in Mrs. Brown's custody when she was 

 17 arrested. 

 18 As the indictment now reads in a number of 

 19 places as to the Colt, it says a Colt Model 1911, .45 

 20 cal. handgun. I propose to strike each place where that 

 21 appears the words Model 1911, .45 cal. So it merely 

 22 reads a Colt handgun. That appears at paragraph 10B, 

 23 paragraph 10HH, and paragraph 17. 

 24 Likewise with the Glock handgun, the 

 25 indictment in several places now reads a Glock Model 17 

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 56 

 1 .40 cal. handgun. I propose to strike each time where 

 2 that appears the words Model 17 .40, so that it reads 

 3 after it's stricken, a Glock handgun. That appears at 

 4 paragraph 10D, paragraph 10II, and at paragraph 18. 

 5 And for the deputy clerk's benefit I will hand 

 6 that copy that's marked to her. 

 7 THE COURT: Very good. Without objection, is 

 8 that correct, Mr. Lange? 

 9 MR. LANGE: Yes, your Honor. 

 10 THE COURT: Mr. Iacopino? 

 11 MR. IACOPINO: Yes, sir. 

 12 THE COURT: Done. 

 13 MR. HUFTALEN: And your Honor, during Mr. 

 14 Lange's opening statement, a transcript of which I have 

 15 in front of me, he said, among other things, now you're 

 16 going to hear evidence in this case about plausible 

 17 argument that there is no statutory provision which 

 18 clearly states in black and white that we have a duty to 

 19 pay federal income tax on the gain from our personal 

 20 labor. I'm skipping part of his text, and then he says 

 21 typically for someone like Elaine, that duty is not 

 22 clearly and succinctly laid out in statutory language in 

 23 some book which you and I can open and point to and read 

 24 and understand for ourselves. In light of those remarks 

 25 I'd request that the court take judicial notice of Title 

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 1 26, Section 1, and include in your instructions the 

 2 reference to Title 26, Section 1, which is that portion 

 3 of the Internal Revenue Code which deals with personal 

 4 income tax. 

 5 MR. LANGE: I object to that, your Honor. The 

 6 language in the section that they would propose you give 

 7 to the jury states very succinctly there is hereby 

 8 imposed on a taxable income and so on, a tax determined 

 9 in accordance with the following table. The issue is 

 10 taxable income. There is no clear definition of what 

 11 taxable income is. 

 12 THE COURT: Mr. Lange, are you going to argue, 

 13 is it your intent to argue to the jury that your client 

 14 did this because she didn't find a taxable income 

 15 provision in the federal statutes, is that your 

 16 position? 

 17 MR. LANGE: My position is going to be that 

 18 she did not find, as I indicated in my opening, the 

 19 government correctly quoted me, my position is going to 

 20 be the same in closing, that she did not find in the 

 21 income tax laws a clear statement what constitutes 

 22 taxable income. 

 23 THE COURT: Therefore what? 

 24 MR. LANGE: And therefore she had a good faith 

 25 reason for believing that she was unjustly convicted in 

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 1 the other trial. 

 2 THE COURT: I'm not sure I'm going to permit 

 3 you to argue that over objection. I'll consider that 

 4 issue. I won't give a -- I won't at this time rule with 

 5 regard to an instruction issue rather than a judicial 

 6 notice issue. Go ahead. 

 7 MR. IACOPINO: Your Honor, I would also lodge 

 8 our objection on the basis that counsel's statement in 

 9 the openings are not evidence and I assume the court's 

 10 going to give the jury instruction that such statements 

 11 are not evidence. 

 12 THE COURT: I do intend to do that. Anything 

 13 else from the government? 

 14 MR. HUFTALEN: No, your Honor. The government 

 15 rests. 

 16 THE COURT: Very good. 

 17 MR. LANGE: Your Honor, I have a couple of 

 18 points. I want to make sure that Defendant's Exhibit 

 19 2-O is a full exhibit. 

 20 THE COURT: Is 2-Oin? 

 21 THE CLERK: Defendant's exhibit, yes. 

 22 MR. LANGE: Also 2-i, Defendant's 2-i. 

 23 THE COURT: Is that in? 

 24 THE CLERK: 2i-1. 

 25 MR. LANGE: That would be the one without the 

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 1 audio. 

 2 THE CLERK: There's 2i-1 is the video without 

 3 the sound, yes. 

 4 THE COURT: There you go. Anything else, Mr. 

 5 Lange? 

 6 MR. LANGE: Not at this time. 

 7 THE COURT: All right. Mr. Iacopino, do you 

 8 have anything? 

 9 MR. IACOPINO: I do have a Rule 29 motion. 

 10 THE COURT: We will deal with that in a 

 11 second. The government's got a piece of paper in his 

 12 hand. 

 13 MR. HUFTALEN: Yes, I apologize. Government's 

 14 Exhibit 1a-3 which is the fingerprint card that Ms. Rees 

 15 used during her testimony, we offered it subject to 

 16 later testimony by Deputy Berry. At the time we offered 

 17 it the ID, as we call it in New Hampshire, was stricken. 

 18 AUSA Ollila did have Agent Berry or Deputy Berry testify 

 19 that it was in fact a record kept in the ordinary course 

 20 of the Marshal Service. To the extent that it wasn't 

 21 offered or received full, we offer it. 

 22 THE COURT: Any objection? No objection is 

 23 heard. It's in. 

 24 (Government's Exhibit 1a-3 admitted.) 

 25 MR. HUFTALEN: Thank you. Nothing further. 

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 1 The government rests. 

 2 THE COURT: Very good. Mr. Lange, do you want 

 3 to argue your motion first or second? 

 4 MR. LANGE: I'll argue the motion first. 

 5 THE COURT: Go right ahead. 

 6 MR. LANGE: The first point I want to bring up 

 7 is the Petrozziello -- you know the case. 

 8 THE COURT: Well, no, that's at the end of all 

 9 evidence. 

 10 MR. LANGE: All right, Okay. 

 11 THE COURT: You're a little premature. 

 12 MR. LANGE: All right. The second point -- 

 13 THE COURT: Petrozziello. 

 14 MR. LANGE: Petrozziello. 

 15 THE COURT: I think you're a little premature. 

 16 You're free to make your motion, but I think I'm 

 17 correct, that it's at the end of all evidence. 

 18 MR. LANGE: I will renew it later. With 

 19 respect to Count One of the indictment as modified, 

 20 Count Two with respect to the indictment as it charges 

 21 my client, and with respect to Count Four which charges 

 22 my client, I move pursuant to Rule 29 of the Federal 

 23 Rules of Criminal Procedure for a directed verdict of 

 24 acquittal on those counts. My position is that with 

 25 regard to Elaine Brown the government has not met its 

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 1 burden -- 

 2 THE COURT: Which counts are those again? 

 3 MR. LANGE: They are counts one. 

 4 THE COURT: One. 

 5 MR. LANGE: Two. 

 6 THE COURT: Two, yup. 

 7 MR. LANGE: And four. 

 8 THE COURT: Okay. Go ahead. Sorry to 

 9 interrupt. 

 10 MR. LANGE: Succinctly stated, my point is 

 11 that the government has not proven with respect to 

 12 Elaine Brown that she was involved in the conspiracy as 

 13 alleged in those counts, and that they have not been 

 14 proven to the satisfaction of any reasonable juror 

 15 beyond a reasonable doubt that she in fact was involved 

 16 in the conspiracy, and more particularly have not proven 

 17 that she was involved in bringing explosive compounds 

 18 into the home, assembling those devices, and publicly 

 19 announcing any intention to resist arrest by virtue of 

 20 those devices and similar destructive devices. I at 

 21 this point concede that the government has met its 

 22 burden at this point to show a prima facie case with 

 23 respect to the other counts, but with regard to those 

 24 three counts they have not met their burden. 

 25 THE COURT: The motion is denied. Mr. 

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 1 Iacopino. 

 2 MR. IACOPINO: Thank you, your Honor. Your 

 3 Honor, at this time I would move to dismiss under Rule 

 4 of Criminal Procedure 29 Counts One, Two, Three, Seven, 

 5 Nine and Ten of the indictment. Those are all counts 

 6 that are lodged against Mr. Brown. I will work 

 7 backwards, your Honor. 

 8 With respect to Count Ten, that charges Mr. 

 9 Brown with failure to appear for sentencing in violation 

 10 18, USC, Section 3146. The record evidence in this case 

 11 fails to establish that Mr. Brown was ever ordered by a 

 12 court to appear for sentencing. There is no evidence 

 13 within this record that demonstrates that a court 

 14 ordered him to appear. Although there is evidence that 

 15 there was an arrest warrant issued for him, there is no 

 16 evidence that that arrest warrant was ever served upon 

 17 him or that he in any way otherwise received an order of 

 18 the court notifying him to appear for sentencing as 

 19 alleged in the indictment. 

 20 Similarly, your Honor, with respect to Count 

 21 Nine which charges my client under the same statute with 

 22 failure to appear for trial, the evidence before the 

 23 court and before this jury in this case is that my 

 24 client appeared and eventually did not continue to go to 

 25 his trial. However, your Honor, under that statute it 

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 1 requires an order of the court directing him to appear, 

 2 and in this particular case there was no order directing 

 3 him to appear on the next day of trial. There is no 

 4 evidence establishing that the judge in that trial told 

 5 him you have to appear here tomorrow for the 

 6 continuation of the trial, and there is no evidence in 

 7 the record otherwise demonstrating that any formal order 

 8 of the court was made to Mr. Brown directing him to 

 9 appear for trial. What is in evidence, your Honor, are 

 10 bail receipts that says -- not bail receipts but the 

 11 conditions of release on bail, your Honor, and I forget 

 12 the exhibit numbers at this point, but perhaps Ms. 

 13 Clouser can help me in a moment, those, if you look at 

 14 those exhibits, your Honor, the way the court works here 

 15 in the District of New Hampshire, there's actually a 

 16 space to put the date for their next appearance in 

 17 court. In those no date is present. Above that there 

 18 is a requirement indicating that the defendant appear as 

 19 required by the court, yet the government has not 

 20 completed the obligation showing that the defendant, or 

 21 presented any evidence, that the defendant was in fact 

 22 required by the court to appear in the continuing course 

 23 of their trial, nor is there any evidence that at any 

 24 point in time Mr. Brown was instructed by Judge 

 25 McAuliffe that he even had to appear for his trial at 

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 1 all. And those exhibits are Exhibit 1a -- I'm sorry, 

 2 that's Elaine Brown. 1a-2, your Honor, is the order 

 3 setting conditions of release dated on May 24th, 2006. 

 4 And on that basis, your Honor, I would move to dismiss 

 5 under Rule 29 Counts Nine and Ten. 

 6 Your Honor, I also move to dismiss Counts One, 

 7 Two and Seven, and I actually have two motions with 

 8 respect to counts -- with respect to Count One. So I'll 

 9 address One, Two and Seven first, your Honor. 

 10 Each of these counts in the indictment allege 

 11 that the defendant either conspired to prevent arrest, 

 12 conspired to impede the United States Marshal Service, 

 13 or actually obstructed justice by impeding the United 

 14 States Marshal Service. In essence, they're really all 

 15 charges that claim my client violated the law under 

 16 basically the same set of actions. And the evidence of 

 17 those actions that is before this court is that my 

 18 client never made an affirmative step to voice anything 

 19 that can reasonably be construed as force, violence, 

 20 intimidation or threats to any United States Marshal, 

 21 and for basis -- and on that basis, your Honor, I would 

 22 respectfully submit that Counts One, Two and Seven must 

 23 be dismissed under Rule 29. 

 24 I also would submit that Count Three which 

 25 charges my client with being a felon in possession -- 

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 1 I'm sorry, charges my client with possession of a 

 2 weapon, use and carrying of a weapon during the 

 3 commission of a crime of violence must also fail. That 

 4 particular count specifically references Counts One and 

 5 Two as being a crime of violence, and obviously since 

 6 the government has not made their case on Counts One and 

 7 Two, Count Three must be dismissed as well. 

 8 Your Honor, I would also point out that in 

 9 Count One of the indictment the government has set forth 

 10 in the indictment a number of overt acts of which there 

 11 has been no proof, and I'm going to list those for the 

 12 court at this time. 

 13 I would suggest to the court that in paragraph 

 14 ten of Count One, which begins on page four, but 

 15 specifically if you go to page five of the indictment, 

 16 subsection 10C alleges a radio interview where Elaine -- 

 17 THE COURT: 10C has already been stricken I 

 18 believe. 

 19 MR. IACOPINO: I'm sorry, yes, 10E and F, your 

 20 Honor. I also draw the court's attention to 10H. 

 21 THE COURT: 10H. 

 22 MR. IACOPINO: 10H where they allege that 

 23 Jason Gerhard temporarily resided in the Browns' home. 

 24 There's been no evidence of that. That Cirino Gonzalez 

 25 temporarily resided in the Browns' home. There's been 

Case 1:09-cr-00030-GZS Document 228 Filed 11/03/09 Page 65 of 82
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 1 no evidence of that in 10I. In 10J they allege that an 

 2 individual by the name of Robert Wolffe who I would 

 3 suggest his name is never even mentioned during the 

 4 course of this trial temporarily resided in the Browns' 

 5 home. In 10K the government alleges that Danny Riley 

 6 publicly declared his intention to forcibly resist any 

 7 effort by the Marshal Service to arrest. That has not 

 8 been established by any evidence in this case, your 

 9 Honor. In 10L, your Honor, they allege that Cirino 

 10 Gonzalez publically declared his intention to forcibly 

 11 resist. There's been no evidence of that. In 10M they 

 12 allege that Jason Gerhard publically declared his 

 13 intention to forcibly resist. There's been no evidence 

 14 about that allegation contained in Section 10M either. 

 15 I would also point to page eight of the 

 16 indictment, 10S, the last sentence of Section 10S, the 

 17 overt act there asserts that the -- there is a picture 

 18 in evidence, your Honor, of Mr. Brown and Mr. Gonzalez 

 19 and Jason and I believe with an individual named Luke, 

 20 that part of that subsection we don't dispute. There is 

 21 in fact a photograph that was posted to an account of a 

 22 social networking space, there is testimony it's 

 23 registered to Jason Gerhard, however, the last sentence 

 24 says that Internet account was used to elicit statements 

 25 in support of Edward Brown and Elaine Brown. That 

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 1 sentence is incorrect, your Honor. There's been no 

 2 evidence of that in this trial. There's been absolutely 

 3 no evidence of that. 

 4 I would then draw the court's attention to 10W 

 5 which alleges that Robert Wolffe provided a 1992 

 6 Chevrolet Caprice to the Browns. There's been no 

 7 evidence of that in this trial. 

 8 10X, your Honor, which begins on page eight of 

 9 the indictment and goes over on to page nine alleges 

 10 that Robert Wolffe, again whose name we have not heard 

 11 during the course of this trial, conducted counter 

 12 surveillance. That has not been proven, your Honor. 

 13 With respect to 10Y they alleged that Mr. 

 14 Wolffe provided armed security. That has not been 

 15 proved in this case, your Honor. 

 16 With respect to 10Z they allege that Wolffe 

 17 made his residence available as a point of 

 18 transshipment. There's been no evidence of that. The 

 19 only evidence of any shipments that there has been, your 

 20 Honor, is of Tannerite that was shipped to Cohoes, New 

 21 York, I believe is the shipping address. 

 22 So, your Honor, I would draw your attention to 

 23 page 11 of the indictment, Section 10KK. There's an 

 24 allegation that there was evidence that Elaine Brown 

 25 held an assault rifle while in the presence of 

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 1 undercover Deputy United States Marshals. I don't 

 2 believe that there was ever any testimony to that 

 3 effect, your Honor. 

 4 So in addition to moving that Count One be 

 5 dismissed under Rule 29 because even if you take all 

 6 inferences in a light most favorable to the government, 

 7 that they fail to establish a prima facie case. Even if 

 8 you choose not to do that, they have failed to establish 

 9 evidence on those overt counts and we'd move that at 

 10 least those overt acts, I'm sorry, alleged in Section 10 

 11 of the indictment that I've just listed, be dismissed 

 12 out of the indictment, your Honor. 

 13 MR. LANGE: I join with respect to the 

 14 argument about overt acts. 

 15 THE COURT: All right. Government, with 

 16 regard to 10J? 

 17 MR. HUFTALEN: No objection to that being 

 18 stricken. 

 19 THE COURT: 10J is stricken. 10K? 

 20 MR. HUFTALEN: No objection. 

 21 THE COURT: Stricken. 10L? 

 22 MR. HUFTALEN: No objection. 

 23 THE COURT: Stricken. 10M? 

 24 MR. HUFTALEN: Stricken. 

 25 THE COURT: Stricken. 

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 1 MR. HUFTALEN: No objection, excuse me. 

 2 THE COURT: No objection, I understand, 

 3 stricken. 10S? 

 4 MR. HUFTALEN: I don't object to the last 

 5 sentence being stricken which is I believe what Mr. 

 6 Iacopino complained about. 

 7 MR. IACOPINO: Second to last sentence. 

 8 THE COURT: Second to last sentence is 

 9 stricken. 

 10 MR. HUFTALEN: Oh, second to the last 

 11 sentence. 

 12 THE COURT: All right. 

 13 MR. LANGE: And I would ask that the last 

 14 sentence also be stricken. I don't recall seeing rifles 

 15 in photographs. Maybe I'm wrong. 

 16 MR. HUFTALEN: As a factual matter, if you 

 17 look at the picture, you can see the rifles -- 

 18 THE COURT: Next to the last sentence is 

 19 stricken. 10W? 

 20 MR. HUFTALEN: No objection. 

 21 THE COURT: Stricken. 10X? 

 22 MR. HUFTALEN: No objection. 

 23 THE COURT: That is stricken. 10Z? 

 24 MR. HUFTALEN: No objection. 

 25 THE COURT: That is stricken. 10KK? 

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 1 MR. HUFTALEN: No objection. 

 2 THE COURT: That is stricken. Anything else 

 3 from the government? 

 4 MR. HUFTALEN: No, thank you. 

 5 THE COURT: All right. And to the extent the 

 6 motion has any other grounds for dismissal, that motion 

 7 is also denied. 

 8 All right, we're going to take a look at the 

 9 video. Who is going first, Mr. Iacopino? 

 10 MR. IACOPINO: Yes, your Honor. 

 11 THE COURT: All right, you ready to go? 

 12 MR. IACOPINO: Yes, your Honor. 

 13 MR. LANGE: We're going to look at the Fazio, 

 14 it's an audio. 

 15 MR. IACOPINO: Yes, it's an audio. 

 16 THE COURT: Just an audio? All right, I'll 

 17 listen to it. Yes? 

 18 MR. HUFTALEN: I saw counsel poke his head in 

 19 the back who I believe the court has appointed to 

 20 represent one of the witnesses. 

 21 THE COURT: That's one of your witnesses, is 

 22 that correct? 

 23 MR. LANGE: That's it, that's an Elaine Brown 

 24 witness. 

 25 THE COURT: All right, let me get started with 

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 1 them. Counsel is here? 

 2 MR. HUFTALEN: I saw at least one. I saw Mr. 

 3 Ramsdell. 

 4 THE COURT: Good, I'm going to see -- bring up 

 5 the audio. I will see counsel in chambers. I want to 

 6 listen to the audio with counsel present. Then we will 

 7 talk to counsel for those two witnesses. 

 8 (Recess taken.) 

 9 (In chambers with counsel at 10:20 

 10 a.m.) 

 11 THE COURT: We're in chambers with counsel. 

 12 I've been provided with two exhibits proposed by 

 13 defendant Elaine Brown. 

 14 MR. IACOPINO: Ed Brown. 

 15 THE COURT: Ed Brown, I'm sorry. This is 

 16 Exhibit 1h-1 and 1g-1. And does it make any difference 

 17 which one I play first? 

 18 MS. CLOUSER: 1g-1 is the first interview. 

 19 MR. IACOPINO: And it is the longer one, too, 

 20 I think. 

 21 MS. CLOUSER: It is the longer one. 

 22 (Pause.) 

 23 THE COURT: Is there objection to both of 

 24 these? 

 25 MR. HUFTALEN: Yes. Hearsay. 

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 1 (Radio interview being played.) 

 2 MS. CLOUSER: That's the end of that clip. 

 3 THE COURT: That's it? 

 4 MS. CLOUSER: Yup. 

 5 MR. HUFTALEN: That's not the end of the CD. 

 6 THE COURT: That's the end of that? 

 7 MS. CLOUSER: Yup. 

 8 MR. IACOPINO: That's the end of the excerpt. 

 9 MR. HUFTALEN: I thought they were all on the 

 10 same CD? 

 11 MS. CLOUSER: No, they are each on separate 

 12 CDs. 

 13 THE COURT: All right, the record should 

 14 indicate that I've now listened to Exhibit 1h-1 with 

 15 counsel present. And now I'm going to listen to Exhibit 

 16 1g-1. Is that the longer one? 

 17 MS. CLOUSER: Yes. 

 18 MR. IACOPINO: I think it's approximately 

 19 13 minutes, your Honor. 

 20 THE COURT: And you want to admit both of 

 21 those in their entirety? 

 22 MR. IACOPINO: In the entirety of the 

 23 excerpts. 

 24 THE COURT: That's what I mean. 

 25 MR. IACOPINO: Yeah, we received these from 

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 1 the government. It's a whole radio show, your Honor -- 

 2 THE COURT: What I'm saying now is both 

 3 exhibits as they appear you want in. 

 4 MS. CLOUSER: Yes. 

 5 MR. IACOPINO: Yes. 

 6 (Radio interview being played.) 

 7 MR. IACOPINO: I think that's it. 

 8 MS. CLOUSER: That's the end. 

 9 THE COURT: The record should indicate I've 

 10 now listened to Defendant's 1g-1. 

 11 All right, why is this admissible over a 

 12 hearsay objection? 

 13 MS. CLOUSER: This is state of mind. 

 14 THE COURT: Under rule? 

 15 MS. CLOUSER: 803(3). 

 16 THE COURT: Go ahead. 

 17 MS. CLOUSER: He's indicating that after 

 18 June 7th that the federal U.S. Marshals have declared 

 19 their intention to use lethal force against them, and 

 20 it's our argument that the weapons that were found on 

 21 October 4th, there certainly have been no, beyond the 

 22 three weapons that were testified to with respect to the 

 23 U.S. Marshals who were surveilling the property on 

 24 June 7th, there's no indication that any of the weapons, 

 25 pipe bombs, anything else were there prior to June 7th, 

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 1 and the reason that none of those items were there is 

 2 because it was after the U.S. Marshals declared their 

 3 intention to use lethal force that Ed and Elaine Brown 

 4 felt that they had to defend themselves against this 

 5 lethal force. And this radio show shows that Ed 

 6 believed reasonably after the show of force on June 7th 

 7 that the U.S. Marshals intended to use lethal force 

 8 against them. They shot at one of the supporters that 

 9 was at his house on June 7th, and their intention was to 

 10 kill the Browns. 

 11 THE COURT: Why is that 803(3)? 

 12 MS. CLOUSER: Well, it shows that Ed Brown's 

 13 state of mind at the time was that he had to use lethal 

 14 force to defend himself against the unlawful show of 

 15 force by the U.S. Marshals. 

 16 THE COURT: Government's position? 

 17 MR. HUFTALEN: I object. I believe it is 

 18 hearsay and I believe the case law in the First Circuit 

 19 as well as the advisory committee notes at 803(3) 

 20 clearly demonstrate that it is hearsay, and in 

 21 particular I bring the court's attention to U.S. versus 

 22 Alzanki, 54 F.3d 994, 1995 First Circuit; U.S. versus 

 23 Cianci, 378 F.3d 71, 2004; and U.S. versus Cohen, 631 

 24 F.2d 1223, 1980, Fifth Circuit. The advisory committee 

 25 notes in particular I think are apt in this case where 

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 1 they say, and I quote, the exclusion of statements of 

 2 memory and belief to prove the fact remembered though 

 3 believed is necessary to avoid the virtual destruction 

 4 of the hearsay rule which would otherwise result in 

 5 allowing state of mind provable by a hearsay statement 

 6 to serve as the basis for an inference of the happening 

 7 of the event which produced the state of mind, and it 

 8 cites to Shepard versus United States, 290 U.S. 96, 1933 

 9 case. There are several other cases cited as well. I 

 10 think the attempt by the defense to put these statements 

 11 in, albeit there are some nuggets in there that I'd like 

 12 to get in front of the jury, it's not worth the price of 

 13 admission for me, clearly is an attempt to put in their 

 14 theory of the case, that is, show us the law and we'll 

 15 pay, we're non-violent people, without exposing 

 16 themselves to cross-examination. It's hearsay and it's 

 17 inadmissible. 

 18 THE COURT: All right, my ruling is that in 

 19 their entirety each exhibit is hearsay. It does not 

 20 come within Rule 803(3). To the extent that minute 

 21 portions of it do, although it hasn't been offered 

 22 separately, the law in my mind is clear that the 

 23 declarant here is attempting to show reasons for his 

 24 state of mind and that's prohibited as set forth in 

 25 Alzanki that the government cited. 

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 1 I also would note that in my view the 

 2 defendant in this case is attempting to show why 

 3 something was not done in the past. That's covered by 

 4 the Cianci case. 

 5 I also find that these are self-serving 

 6 attempts to cover tracks already made and they don't -- 

 7 these statements have no indicia of reliability. This 

 8 is an individual who is in the midst of criminal 

 9 activity attempting to create an alibi, a reason for the 

 10 criminal activity while in the midst of it. That 

 11 doesn't give any indicia of reliability as to these 

 12 statements. So as presented these exhibits are excluded 

 13 as hearsay. 

 14 What else before we go back? 

 15 MR. LANGE: Your Honor, we will probably be 

 16 visiting something similar when we get to the Elaine 

 17 Brown part of this case. 

 18 THE COURT: All right, do you have any audios 

 19 for me to listen to? 

 20 MR. LANGE: Not yet, your Honor, because I'm 

 21 going to offer them under -- 

 22 THE COURT: You may. The attorney for who is 

 23 here? 

 24 MR. HUFTALEN: Both attorneys for the Dions 

 25 are here. William Christie I believe -- 

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 1 THE COURT: Just a second. 

 2 MR. HUFTALEN: Oh, sorry. 

 3 THE COURT: Let me write this down. William 

 4 Christie? 

 5 MR. HUFTALEN: William Christie, 

 6 C-h-r-i-s-t-i-e. 

 7 THE COURT: For? 

 8 MR. LANGE: He's for Scott Dion, D-i-o-n. 

 9 THE COURT: All right. 

 10 MR. LANGE: Michael Ramsdell is for the wife 

 11 Catherine, spelled with a C. 

 12 THE COURT: Are they here? 

 13 MR. LANGE: Yes. 

 14 THE COURT: Counsel want to do it at this time 

 15 or do you want to wait? 

 16 MR. LANGE: Now is fine. 

 17 THE COURT: Get them. 

 18 THE CLERK: Yes, sir. 

 19 THE COURT: Let's get Mr. Christie and Mr. -- 

 20 MS. OLLILA: Ramsdell. 

 21 THE COURT: Ramsdell, thank you. 

 22 (Pause.) 

 23 THE COURT: Let me also indicate for the 

 24 record as regards to those exhibits. It seemed to be 

 25 attempting to apply the justification defense, and in my 

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 1 view at this point I don't see a justification defense 

 2 as applicable. I'll expand on that as we move toward 

 3 jury instructions. 

 4 (Off the record.) 

 5 THE CLERK: This is attorney Bill Christie and 

 6 Attorney Ramsdell. 

 7 THE COURT: Have a seat. Have a seat. Okay. 

 8 We have present with us Mr. Christie and Mr. Ramsdell, 

 9 correct? 

 10 MR. RAMSDELL: Yes. 

 11 MR. CHRISTIE: Correct. 

 12 THE COURT: All right, preliminarily let me 

 13 thank both of you for coming forward and agreeing to 

 14 talk to these two individuals. 

 15 Mr. Christie, you had an opportunity to talk 

 16 to Mr. Dion, is that correct? 

 17 MR. CHRISTIE: That's right. 

 18 THE COURT: And without your telling me 

 19 anything that you two discussed, which is obviously 

 20 privileged, is it Mr. Dion's intent to waive any Fifth 

 21 Amendment rights that he may have and testify with 

 22 regard to this matter? 

 23 MR. CHRISTIE: It is not. His intention is to 

 24 assert the Fifth Amendment. 

 25 THE COURT: Mr. Ramsdell, have you had a 

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 1 chance to talk to Mrs. Dion? 

 2 MR. RAMSDELL: I have, your Honor. 

 3 THE COURT: Again, without your indicating to 

 4 me whether or not what you've discussed specifically, is 

 5 it her intent to waive her Fifth Amendment rights or 

 6 assert them? 

 7 MR. RAMSDELL: She intends to assert them. 

 8 THE COURT: And you've been advised of the 

 9 nature of the proposed testimony, either of you? 

 10 MR. LANGE: I don't think that you have. You 

 11 have a little bit but -- 

 12 MR. RAMSDELL: Well, I can tell you, I spoke 

 13 to Attorney Lange briefly yesterday. He gave me an idea 

 14 of at least some of the testimony he would seek to 

 15 elicit, and I shared the information I got with Attorney 

 16 Christie, and so we have some idea. 

 17 THE COURT: All right. What I propose to do, 

 18 I'll hear from counsel, but normally what I would do is 

 19 I would have these witnesses present, out of the hearing 

 20 of the jury, we will put them on the stand, I'll advise 

 21 them of their Fifth Amendment privilege. Counsel, you 

 22 indicate, if you want to indicate the issues that you 

 23 wish them to testify about, I'll determine from them 

 24 whether they wish to claim privilege with regard to 

 25 those specific issues. I'll hear counsel with regard to 

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 1 any additional questions you want me to ask the 

 2 witnesses, and then we will make a decision with regard 

 3 to their testimony. Is that satisfactory to counsel? 

 4 MR. LANGE: It is, your Honor. 

 5 MR. IACOPINO: Yes. 

 6 MR. HUFTALEN: Yes. 

 7 THE COURT: Everyone agrees, very good. So we 

 8 will see them -- are they available at 2:30? Are you 

 9 available 2:30? 

 10 MR. CHRISTIE: Today? Yes. 

 11 MR. RAMSDELL: Yes. 

 12 THE COURT: We will do it as soon as we finish 

 13 with the day's trial so I don't keep you people late, 

 14 we'll but them right on. 

 15 Counsel, if you would, before 2:30 if you have 

 16 an opportunity, let Mr. Christie and Mr. Ramsdell know 

 17 generally the issues so that they can discuss it with 

 18 their clients, all right? 

 19 Anyone have anything else on the record? All 

 20 right, we're off the record. Thank you very much. I'll 

 21 see you both at 2:30 with your clients. 

 22 MR. RAMSDELL: Thank you. 

 23 MR. CHRISTIE: Thank you. 

 24 (Off the record.) 

 25 (Back in the courtroom at 10:50 a.m.) 

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 1 THE COURT: Ready for the jury? Please bring 

 2 in the jury. 

 3 BEFORE THE JURY 

 4 THE COURT: Sorry for the delay, members of 

 5 the jury, we have been working throughout that period of 

 6 time, just kept you waiting. 

 7 All right, Mr. Iacopino, call your first 

 8 witness. 

 9 MR. IACOPINO: Thank you. Ed Brown. 

 10 (Testimony of Edward Brown previously 

 11 transcribed.) 

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 1 

 2 C E R T I F I C A T E 

 3 

 4 I, Sandra L. Bailey, do hereby certify that 

 5 the foregoing transcript is a true and accurate 

 6 transcription of the within proceedings, to the best of 

 7 my knowledge, skill, ability and belief. 

 8 

 9 

 10 Submitted: 11/3/09 /s/ Sandra L. Bailey 

 SANDRA L. BAILEY, LCR, CM, CRR 

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