UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

v.

JASON GERHARD, Cr. No. 07-189-01/04-GZS

CIRINO GONZALEZ,
DANIEL RILEY, and
ROBERT WOLFFE

GOVERNMENT’S MOTION IN LIMINE

The United States submits this Motion In Limine to prevent

the defendants, Jason Gerhard, Cirino Gonzalez, Daniel Riley and

Robert Wolffe, from introducing evidence to prove that the

Internal Revenue Service (“IRS”) does not have legal authority to

collect personal income taxes (“taxes”), and in support thereof

states:

Background

With the court’s permission, the government’s first trial

witness, Deputy United States Marshal Jamie Berry, will, among

other things, briefly describe the government’s prosecution of

Edward Brown (“Edward”) and Elaine Brown (“Elaine”), the

circumstances under which federal warrants were issued for the

Browns’ arrests, and some of the tactics the Browns used to avoid

being arrested. Deputy Marshal Berry will also explain that the

Browns allowed a number of people, including the defendants, who

shared their belief that the IRS lacks authority to collect

personal income taxes, to enter and remain in their home for

varying periods of time while they (the Browns) were fugitives.

Deputy Marshal Berry will also generally describe the strategy

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

Marshal’s 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

Page 2 of 5
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 jury’s determination of the case.2

1
The defendants are charged with Conspiring to Prevent
Officers 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

Page 3 of 5
 Argument

As the proponent of the evidence, the defendants have the

burden of proving it is relevant. In that regard, they are

required to make some showing that the IRS’s (claimed) lack of

authority to collect taxes will have “the tendency to make the

existence of a fact that is of consequence” to the outcome of

their trial “more probable or less probable.” Fed. R. Evid. 401.

In other words, the defendants must explain how the IRS’s

(claimed) lack of authority to collect taxes creates a legally

recognized defense to the offenses that are charged in this case.

Since the defendants cannot satisfy that burden, the evidence

must be excluded as irrelevant.

Moreover, even if the evidence has some relevance to this

case, it must be excluded because its probative value is

substantially outweighed by the danger of “unfair prejudice,”

“confusion of the issues,” and the admission of the evidence

would be a “waste of time.” Fed. R. Evid. 403.

Conclusion

The government respectfully requests the court to exclude

all evidence the defendants intend to introduce to support their

belief that there is no legal authority for the IRS to collect

United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969),
cert. denied, 397 U.S. 991 (1970)(“Jurors have the power to
ignore the law, but their duty is to apply the law as interpreted
by the court, and they should be so instructed”).

Page 4 of 5
personal income taxes.

Dated: January 16, 2008

Respectfully submitted,

Thomas Colantuono
United 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

Page 5 of 5