UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

v. Cr. No. 07-189-01/03-GZS

DANIEL RILEY, et al

GOVERNMENT’S MEMORANDUM CONCERNING ARGUMENT OF

AND PROPOSED JURY INSTRUCTION RE: NECESSITY AND JUSTIFICATION

It has been apparent since Daniel Riley’s opening statement

that he intends argue to the jury that he did not commit the

crimes he is charged with because he subjectively believed that

Edward and Elaine Brown would be killed by the United States

Marshal Service (“USMS”).1

Riley’s counsel has not requested the Court to instruct the

jury on the elements of a “necessity” or “justification” defense,

presumably because Riley’s counsel knows that the defense does

not apply to the facts of this case. Nevertheless, the

government is concerned that Riley’s intended argument - that he

subjectively believed that government agents were going to kill

the Browns - could include a direct or implicit suggestion that

Riley’s conduct was necessary or justified under the law.

As the court is aware, the defense of necessity is an

1
Government counsel raised an objection concerning this
issue after defendant Riley’s opening statement and the Court
advised that the government could submit a proposed instruction.
Counsel for defendants Jason Gerhard and Cirino Gonzalez
have informed the government that they do not intend to make the
same or a similar argument to the jury.

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affirmative defense to some criminal statutes. When it is

available, the defendant has the burden to prove its

applicability by a preponderance of the evidence.2 United States

v. Maxwell, 254 F.3d 21, 24-25 (1st Cir. 2001); United States v.

Dicks, 338 F.3d 1256 (11th Cir. 2003); United States v.

Deleveaux, 205 F.3d 1292, 1296 (11th Cir. 2000).

The defense is only employed, however, if a defendant admits

to the underlying offense and offers a factual justification for

his actions. See, e.g., United States v. Fay, 668 F.2d 35 (8th

Cir. 1981). To employ the defense a defendant must establish:

(1) that he was faced with a choice of evils and chose the lesser

evil; (2) he acted to prevent imminent harm; (3) he reasonably

anticipated a causal relation between his conduct and the harm he

was seeking to prevent; and, (4) there were no other legal

alternatives to violating the law. United States v. Sued-

Jimenez, 275 F.3d 1 (1st Cir. 2001), cert denied sub nom., Sued-

Jimenez v. United States, 535 U.S. 1019 (2002); United States v.

Maxwell, 254 F.3d 21, 27 (1st Cir. 2001); United States v.

Eller, 2007 WL 1544779 (N.D. Cal. 2007); United States v. Rojas,

233 Fed. App. 947 (11th Cir. 2007). Because the elements of the

defense are conjunctive, it should not be applied if proof of any

2
The United States Supreme Court has never held necessity to
be a viable justification for the violation of a federal statute,
therefore, courts must give great deference to Congressional
intent. United States v. Oakland Cannabis Buyers’ Cooperative,
532 U.S. 483 (2001).

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one of the four elements is lacking. Sued-Jimenez, 275 at 6;

Maxwell, 254 F.3d at 27.

If there is insufficient evidence as a matter of law to

support the defense, it should be prohibited. Maxwell, 254 F.3d

at 29.

Riley does not come close to satisfying any of the elements

of the defense. His conduct was obviously not a response to a

“choice of evils” because he made a number of unimpeded visits to

the Browns’ residence from March to August 2007.

During the trial, there is was no suggestion that Riley

acted to prevent an imminent harm. Maxwell, 254 F.3d at 27 (“the

term ‘imminent harm’ connotes a real emergency, a crisis

involving immediate danger to oneself or a third party”) citing

United States v. Newcomb, 6 F.3d 1129, 1135-36 (6th Cir. 1993);

United States v. Seward, 687 F.2d 1270, 1276 (10th Cir. 1982).

In fact, the only reasonable inference that can be drawn from the

evidence is that the USMS was committed - painstakingly so - to

pursuing a peaceful resolution of the stand-off, and that Riley’s

conduct substantially increased the chances that someone,

probably a Deputy United States Marshal, would be killed.

In addition, there is no basis in the record for Riley to

reasonably believe that the USMS was going to kill the Browns or

that his conduct would eliminate that imaginary threat. Maxwell,

254 F.3d at 28 (a defendant cannot “will a causal relationship

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into being simply by the fervor of his convictions no matter how

sincerely held”), citing United States v. Montgomery, 772 F.2d

733, 736 (11th Cir. 1985) (holding that defendants could not

reasonably have believed that their entry into a defense plant

would bring about nuclear disarmament); United States v. Dorrell,

758 F.2d 427, 433 (9th cir. 1985) (finding that defendant had

failed to establish that breaking into an air force base and

vandalizing government property could reasonably be expected to

lead to the termination of the MX missile program); United States

v. Cassidy, 616 F.2d 101, 102 (4th Cir.1979) (per curiam)

(finding it unlikely that splashing blood on Pentagon walls would

impel the United States to divest itself of nuclear weapons).

In addition, a number of legal alternatives were available

to Riley. He could have decided to not get involved, he could

have affirmatively withdrawn, he could have cooperated with the

USMS, he could have made an attempt to negotiate on behalf of the

Browns with the USMS, and could have tried to get a Presidential

pardon for the Browns. In this regard the First Circuit has

stated, “[t]o succeed on a necessity defense a defendant must

show that he had no legal alternative to violating the law.

United States v. Turner, 44 F.3d 900, 902 (10th Cir. 1995). This

makes perfect sense; the necessity defense does not arise from a

defendant’s choice of a preferred course of action from among a

universe of possible courses of action (some legal, some not) but

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from an emergent crisis that, as a practical matter, precludes

all principled options but one”. Maxwell, 254 F.3d at 28, citing

Seward 687 F.2d at 1276. In addition, “[t]he fact that [a

defendant] is unlikely to affect the changes he desires through

legal alternatives does not mean, ipso facto, that those

alternatives are non-existent. [Citation omitted]. Accepting

such an argument would be tantamount to giving an individual

carte blanche to interpose a necessity defense whenever he

becomes disaffected by the workings of the political process.

Maxwell, 254 F.3d at 29. (Emphasis added).

Under the circumstances of this case, the Court should

instruct Riley’s counsel that he is not permitted to directly or

indirectly argue, or to suggest, that Riley’s conduct was

justified or necessary. And if such an Order is issued and it is

ignored by Riley’s counsel, the government will request the Court

to give the following curative instruction to the jury: “It was

improper for Mr. Riley’s counsel to argue that Mr. Riley believed

his actions were a necessary response to the efforts of the

United States Marshal’s Service to arrest Edward and Elaine

Brown. There is no legal or factual basis for Mr. Riley’s

counsel to make that argument to you, and you should ignore it.”

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Dated: April 3, 2008

Respectfully submitted,

Thomas Colantuono
United States Attorney

By: /s/ Robert M. Kinsella

Robert M. Kinsella
Assistant United States Attorney
MA Bar No.273315
53 Pleasant St., 4th Floor
Concord, New Hampshire 03301
(603) 225-1552

By: /s/ Arnold H. Huftalen

Arnold H. Huftalen
Assistant United States Attorney
N.H. Bar Assoc. No. 1215
53 Pleasant Street, 4th Floor
Concord, New Hampshire 03301
(603) 225-1552

CERTIFICATION OF SERVICE

I hereby certify that service is being made upon all counsel

of record, via ecf filing notice, and that copies will be hand
delivered today.
/s/ Arnold H. Huftalen
Arnold H. Huftalen
Assistant United States Attorney

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