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615 F.3D 7 United States Court of Appeals, First Circuit. UNITED U.S. v. Gerhard, 615 F.3d 7 (2010) 106 A.F.T.R.2d 2010-5962 [2] Double Jeopardy Clause had not been 615 F.3d 7 violated by convicting defendants for their United States Court of Appeals, conduct of being accessories after the First Circuit. fact under provision of one statute and UNITED STATES of America, Appellee, under provisions of other statutes for their v. conspiracy to prevent United States officer Jason GERHARD, from performing his duty; Defendant, Appellant. United States of America, Appellee, [3] Double Jeopardy Clause had not been v. violated by convicting defendants for their Cirino Gonzalez, Defendant, Appellant. conspiracy to be accessory after the fact under United States of America, Appellee, provision of one statute and under provisions v. of other statutes for their conspiracy to prevent Daniel Riley, Defendant, Appellant. United States officer from performing his duty; Nos. 08–2056, 08–2300, [4] Double Jeopardy Clause had not been 08–2450. | Heard May 5, violated by convicting defendants for their 2010. | Decided July 30, 2010. conspiracy to be accessory after the fact and also of being accessory after the fact; Synopsis Background: Defendants were convicted in [5] indictment charging defendants as the United States District Court for the District accessories established adequate notice to of New Hampshire, George Singal, J., among defendants that “offense against the United other charges, of conspiring to commit offenses States ha[d] been committed,” for double against United States and being accessories jeopardy purposes; after the fact to tax crimes of convicted criminals. Defendants appealed. [6] United States had jurisdiction to prosecute federal crimes occurring in New Hampshire; Holdings: The Court of Appeals, Lynch, Chief [7] defendant's voluntary, knowing, and Judge, held that: intelligent waiver of his right to proceed without counsel had not been violated; and [1] Double Jeopardy Clause had not been violated by convicting defendants under [8] jury had been accurately instructed of provision of one statute for their conspiracy to government's burden of proof. prevent United States officer from discharging his duties and under provisions of other statutes Affirmed. for their conspiracy to interfere with officer while in performance of his duties; © 2013 Thomson Reuters. No claim to original U.S. Government Works. 1 U.S. v. Gerhard, 615 F.3d 7 (2010) 106 A.F.T.R.2d 2010-5962 from their Plainfield, New Hampshire, Attorneys and Law Firms property, turning it into an armed camp. U.S. Marshals, having learned from past *11 Paul M. Glickman with whom Glickman experiences, were anxious to avoid a violent Turley LLP, was on brief, for appellant Jason confrontation; eventually they peacefully Gerhard. apprehended the Browns in October 2007. Joshua L. Gordon with whom Law Office of Joshua L. Gordon, was on brief, for appellant Defendants helped acquire firearms and Cirino Gonzalez. explosives and turn the Browns' property into a potential death trap. They also made statements Sven D. Wiberg with whom Wiberg Law to the media and through the Internet to the Office, PLLC, was on brief, for appellant effect that any law enforcement officers who Daniel Riley. attempted to arrest the Browns would do so at their peril. Defendants were arrested in Seth R. Aframe, Assistant United States September 2007. Attorney, with whom Gretchen Leah Witt, Acting United States Attorney, was on brief, for Defendants were indicted in January 2008 appellee. on charges of conspiring to prevent federal officers from discharging their duties, 18 *12 Before LYNCH, Chief Judge, SOUTER, U.S.C. § 372 (Count 1), conspiring to commit * Associate Justice, SELYA, Circuit Judge. offenses against the United States, id. § 371 (Count 2), and being accessories after the fact to * The Hon. David H. Souter, Associate Justice (Ret.) the Browns' tax crimes, id. § 3 (Count 3). Each of the Supreme Court of the United States, sitting by designation. defendant was also charged in an individual count alleging possession of firearms and/or Opinion destructive devices in connection with a crime of violence, 18 U.S.C. § 924(c)(1)(A)-(B); LYNCH, Chief Judge. Gerhard was charged in Count 4, Gonzalez in Count 5, and Riley in Count 6. Jason Gerhard, Cirino Gonzalez, and Daniel Riley were convicted after actively supporting After a twelve-day jury trial, Gerhard and two convicted criminals during a well- Riley were convicted on all counts against publicized, nine-month standoff with federal them. Gonzalez was convicted on Counts 2 authorities, and they now appeal. and 3; the jury hung as to Count 1, the conspiracy-to-prevent charge, and Count 5, These three defendants violated several federal which charged him with possessing a firearm in statutes by providing material support to connection with a violent crime. Those counts Edward and Elaine Brown, who refused to were dismissed on the government's motion. surrender to face punishment following their January 2007 federal tax convictions. The Browns defied law enforcement authorities © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 U.S. v. Gerhard, 615 F.3d 7 (2010) 106 A.F.T.R.2d 2010-5962 Riley was sentenced to 432 months' On January 12, the couple failed to show up imprisonment, five years of supervised release, for the fourth day of trial. Edward Brown did and a $400 special assessment; Gerhard to 240 not appear for the remainder of the proceedings, months' imprisonment, five years of supervised and, on January 12, the district court issued release, and a $400 special assessment; and a warrant for his arrest. The U.S. Marshals Gonzalez to 96 months' imprisonment, three Service (“USMS”) convinced Elaine Brown years of supervised release, and a $200 special to return for the balance of the trial; as assessment. 1 a precaution, the district court barred her from returning to the couple's Plainfield, New Hampshire, property—where Edward Brown 1 The Browns were separately charged with and convicted of obstruction of justice, conspiracy, and several related was known to be staying—and ordered her to offenses arising from their refusal to surrender. Their wear a tracking bracelet. On January 18, the appeal is pending. jury returned a guilty verdict against both of the Defendants now raise a variety of objections. Browns on all counts against them. Sentencing We reject each of their claims and affirm. was scheduled for April 24, 2007. On February 20, 2007, Elaine Brown disobeyed I. Factual Background the court's orders by removing her tracking bracelet and joining Edward Brown at the We describe Edward and Elaine Brown's Plainfield property. The following day, the well-publicized confrontation with federal court issued a warrant for her arrest. On April authorities to set the stage, as well as some of 24, the Browns were sentenced in absentia to each of the defendant's activities. 63 months' imprisonment on the tax-related charges followed by three years' supervised The Browns were indicted on April 5, 2006, release. They did not surrender to federal for conspiracy to defraud the United States, 18 authorities. U.S.C. § 371, conspiracy to structure financial transactions to avoid reporting requirements, The Browns publicly threatened that any efforts id., and aiding and abetting the structuring to arrest them on their Plainfield property of financial transactions to avoid reporting would be met with lethal force. Beginning on requirements, 31 U.S.C. § 5324(a)(3) and *13 January 12, a cadre of supporters, some of them 18 U.S.C. § 2. Elaine Brown was also charged armed, joined Edward Brown on the couple's with multiple counts of aiding and abetting tax property. Edward Brown invoked the specter evasion, 26 U.S.C. § 7201 and 18 U.S.C. § 2, of past violent confrontations with federal law and aiding and abetting the willful failure to enforcement personnel in Ruby Ridge, Idaho, 2 collect employment taxes, 26 U.S.C. § 7202 and Waco, Texas, should federal authorities try and 18 U.S.C. § 2. The Browns' trial began on to take the Browns into custody. He held widely January 9, 2007. reported press conferences, gave statements to the media, and contributed to Internet broadcasts in which he warned that anyone who © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 U.S. v. Gerhard, 615 F.3d 7 (2010) 106 A.F.T.R.2d 2010-5962 attempted to imprison him or his wife would safely into custody so that no be killed. He also made threats against the lives one got hurt. of officers and elected officials, as well as their families. Elaine Brown insisted that the couple From January until mid-June 2007, deputy would either leave their property free or in body marshals spoke regularly to the Browns on bags. the telephone, urging them to surrender. The U.S. Marshal also sent the Browns two letters, 2 Randy Weaver, whose 1992 standoff with federal describing their legal situation *14 and asking authorities at Ruby Ridge resulted in multiple deaths, see them to give themselves up to authorities. Idaho v. Horiuchi, 215 F.3d 986, 988–91 (9th Cir.2000), vacated as moot by Idaho v. Horiuchi, 266 F.3d 979 During this period, the USMS did not attempt (9th Cir.2001), eventually joined the Browns on their property for some portion of the standoff. to enter the Browns' residence, which sat in Attracted by these statements, television, print, the middle of their hundred-acre property and and electronic media set up shop in Plainfield had a “very difficult approach.” The USMS to report on the standoff. began surveillance of the Browns' property in January but carefully avoided encounters with The USMS, determined to avoid a violent the Browns or their supporters that could have confrontation, “went to extraordinary lengths resulted in violence.
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