AUSA Exclude Tax Arguments[1]#157

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Deputy Marshal Berry will also generally describe the strategy

and some of the tactics that were used by the United States

Marshals Service and other law enforcement agencies to

eventually arrest the Browns. That non-hearsay testimony is

admissible and necessary to provide a factual background to the

offenses that are charged in this case and also to complete the

story of how and why the offenses were committed. United States

v. Meserve, 271 F.3d 314, 319-20 (1st Cir. 2001) ([t]estimony

that is not offered to prove the truth of an out-of-court

statement, but is instead offered to provide relevant context

background, is not considered hearsay) (citing United States v.

Mazza, 792 F.2d 1210, 1215 (1st Cir. 1986); United States v.

Freeman, 816 F.3d 1210, 1215 (10th Cir. 1987); and United States

v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985)). See also United

States v. Fulmer, 108 F.3d 1486, 1493 (1st Cir. 1997)

(circumstances under which defendant made threatening statements

to a law enforcement agent admissible to prove a disputed element

of an offense) (citing United States v. DiMarzo, 80 F.3d 656, 661

(1st Cir.) cert. denied, 519 U.S. 904 (1996) and United States v.

Taylor, 54 F.3d 967 (1st Cir. 1995)).

Most of the remaining evidence the government will introduce

during the trial will focus on the activities of the defendants

and other people with whom they conspired to forcibly impede,

deter, prevent and violently repel the efforts of law enforcement


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1

The defendants are charged with Conspiring to PreventOfficers of the United States from Discharging Their Duties, in

violation of 18 U.S.C. 372 (Count One); and Conspiracy to

Forcibly, Assault, Resist, Oppose, Impede, Intimidate and

Interfere with Officers of the United States and to be

Accessories After the Fact, in violation of 18 U.S.C. 371,

111(a)(1) and 3 (Count 2); and Accessory After the Fact, in

violation of 18 U.S.C. 3. Defendants Gerhard and Riley are also

charged with Carrying and Possessing a Firearm in Connection with

a Crime of Violence, in violence of 18 U.S.C. 924(c)(1)(A)(I)

and 924(c)(1)B)(ii)(Counts 4 and 6, respectively). Defendant

Gonzalez is also charged with Carrying and Possessing a Firearm

in Connection with a Crime of Violence, in violation of 18 U.S.C.924(c)(1)(A)(I) (Count 4).

2 In addition, the admission of the evidence may invite

the defendants to assert a defense of jury nullification, which

is not permitted by the First Circuit Court of Appeals. United

States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (citing

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agents to arrest the Browns.

For their individual and collective contributions to that

effort, the defendants are charged with a number of federal

crimes.1 The government expects the defendants to attempt to

rebut those charges by asserting, among other things, that their

conduct was justified in order to prevent the Browns from being

wrongfully imprisonment for crimes that do not exist. In an

effort to bolster that spurious defense, the defendants may seek

to introduce evidence that is solely intended to prove that the

government does not have authority to prosecute anyone who evades

paying personal income taxes because the IRS does not have the

legal authority to collect the tax. In short, that evidence

must be excluded because it is false, unreliable, misleading and

irrelevant to the jurys determination of the case.2


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personal income taxes.

Dated: January 16, 2008

Respectfully submitted,

Thomas ColantuonoUnited States Attorney

By: /s/ Arnold H. Huftalen

Arnold H. Huftalen

Assistant United States Attorney

NH Bar No. 1215

53 Pleasant St., 4th Floor

Concord, New Hampshire 03301

(603) 225-1552

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

Certificate of Service

I hereby certify that on January 16, 2008, I caused a copy

of the foregoing to be filed electronically and to be sent by

Overnight Mail to Daniel Riley at the Strafford County House of

Corrections.

/s/ Robert M. Kinsella

Robert M. Kinsella, AUSA

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AUSA Exclude Tax Arguments[1]#157