United States v. Gerhard

United States Court of Appeals
For the First Circuit

No. 08-2056

UNITED STATES OF AMERICA,

Appellee,

v.

JASON GERHARD,

Defendant, Appellant,

No. 08-2300

UNITED STATES OF AMERICA,

Appellee,

v.

CIRINO GONZALEZ,

Defendant, Appellant,

No. 08-2450

UNITED STATES OF AMERICA,

Appellee,

v.

DANIEL RILEY,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
 [Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter, Associate Justice,*
Selya, Circuit Judge.

Paul M. Glickman with whom Glickman Turley LLP was on brief
for appellant Jason Gerhard.
Joshua L. Gordon with whom Law Office of Joshua L. Gordon was
on brief for appellant Cirino Gonzalez.
Sven D. Wiberg with whom Wiberg Law Office, PLLC was on brief
for appellant Daniel Riley.
Seth R. Aframe, Assistant United States Attorney, with whom
Gretchen Leah Witt, Acting United States Attorney, was on brief for
appellee.

July 30, 2010

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 LYNCH, Chief Judge. Jason Gerhard, Cirino Gonzalez, and

Daniel Riley were convicted after actively supporting two convicted

criminals during a well-publicized, nine-month standoff with

federal authorities, and they now appeal.

These three defendants violated several federal statutes

by providing material support to Edward and Elaine Brown, who

refused to surrender to face punishment following their January

2007 federal tax convictions. The Browns defied law enforcement

authorities from their Plainfield, New Hampshire, property, turning

it into an armed camp. U.S. Marshals, having learned from past

experiences, were anxious to avoid a violent confrontation;

eventually they peacefully apprehended the Browns in October 2007.

Defendants helped acquire firearms and explosives and

turn the Browns' property into a potential death trap. They also

made statements to the media and through the Internet to the effect

that any law enforcement officers who attempted to arrest the

Browns would do so at their peril. Defendants were arrested in

September 2007.

Defendants were indicted in January 2008 on charges of

conspiring to prevent federal officers from discharging their

duties, 18 U.S.C. § 372 (Count 1), conspiring to commit offenses

against the United States, id. § 371 (Count 2), and being

accessories after the fact to the Browns' tax crimes, id. § 3

(Count 3). Each defendant was also charged in an individual count

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alleging possession of firearms and/or destructive devices in

connection with a crime of violence, 18 U.S.C. § 924(c)(1)(A)-(B);

Gerhard was charged in Count 4, Gonzalez in Count 5, and Riley in

Count 6.

After a twelve-day jury trial, Gerhard and Riley were

convicted on all counts against them. Gonzalez was convicted on

Counts 2 and 3; the jury hung as to Count 1, the conspiracy-to-

prevent charge, and Count 5, which charged him with possessing a

firearm in connection with a violent crime. Those counts were

dismissed on the government's motion.

Riley was sentenced to 432 months' imprisonment, five

years of supervised release, and a $400 special assessment;

Gerhard to 240 months' imprisonment, five years of supervised

release, and a $400 special assessment; and Gonzalez to 96 months'

imprisonment, three years of supervised release, and a $200 special

assessment.1

Defendants now raise a variety of objections. We reject

each of their claims and affirm.

I. Factual Background

We describe Edward and Elaine Brown's well-publicized

confrontation with federal authorities to set the stage, as well as

some of each of the defendant's activities.

1
The Browns were separately charged with and convicted of
obstruction of justice, conspiracy, and several related offenses
arising from their refusal to surrender. Their appeal is pending.

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 The Browns were indicted on April 5, 2006, for conspiracy

to defraud the United States, 18 U.S.C. § 371, conspiracy to

structure financial transactions to avoid reporting requirements,

id. § 371, and aiding and abetting the structuring of financial

transactions to avoid reporting requirements, 31 U.S.C.

§ 5324(a)(3) and 18 U.S.C. § 2. Elaine Brown was also charged with

multiple counts of aiding and abetting tax evasion, 26 U.S.C.

§ 7201 and 18 U.S.C. § 2, and aiding and abetting the willful

failure to collect employment taxes, 26 U.S.C. § 7202 and 18 U.S.C.

§ 2. The Browns' trial began on January 9, 2007.

On January 12, the couple failed to show up for the

fourth day of trial. Edward Brown did not appear for the remainder

of the proceedings, and, on January 12, the district court issued

a warrant for his arrest. The U.S. Marshals Service ("USMS")

convinced Elaine Brown to return for the balance of the trial; as

a precaution, the district court barred her from returning to the

couple's Plainfield, New Hampshire, property––where Edward Brown

was known to be staying––and ordered her to wear a tracking

bracelet. On January 18, the jury returned a guilty verdict

against both of the Browns on all counts against them. Sentencing

was scheduled for April 24, 2007.

On February 20, 2007, Elaine Brown disobeyed the court's

orders by removing her tracking bracelet and joining Edward Brown

at the Plainfield property. The following day, the court issued a

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warrant for her arrest. On April 24, the Browns were sentenced in

absentia to 63 months' imprisonment on the tax-related charges

followed by three years' supervised release. They did not

surrender to federal authorities.

The Browns publicly threatened that any efforts to arrest

them on their Plainfield property would be met with lethal force.

Beginning on January 12, a cadre of supporters, some of them armed,

joined Edward Brown on the couple's property. Edward Brown invoked

the specter of past violent confrontations with federal law

enforcement personnel in Ruby Ridge, Idaho,2 and Waco, Texas,

should federal authorities try to take the Browns into custody. He

held widely reported press conferences, gave statements to the

media, and contributed to Internet broadcasts in which he warned

that anyone who attempted to imprison him or his wife would be

killed. He also made threats against the lives of officers and

elected officials, as well as their families. Elaine Brown

insisted that the couple would either leave their property free or

in body bags.

2
Randy Weaver, whose 1992 standoff with federal
authorities at Ruby Ridge resulted in multiple deaths, see Idaho
v. Horiuchi, 215 F.3d 986, 988-91 (9th Cir. 2000), vacated as moot
by Idaho v. Horiuchi, 266 F.3d 979 (9th Cir. 2001), eventually
joined the Browns on their property for some portion of the
standoff.

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 Attracted by these statements, television, print, and

electronic media set up shop in Plainfield to report on the

standoff.

The USMS, determined to avoid a violent confrontation,

"went to extraordinary lengths to insure that [the standoff] would

be resolved peacefully without people being injured or killed." As

New Hampshire's U.S. Marshal testified at the defendants' trial:

[A]lmost immediately [Edward Brown] started talking
about violence, using violence towards law
enforcement if we attempted to go to his house. He
talked about Waco and Ruby Ridge. There were
supporters there. We knew there were weapons
there. So we made a conscious decision in January
to proceed in a very deliberate and methodical way
to find the best means and the best opportunity to
take them safely into custody so that no one got
hurt.

From January until mid-June 2007, deputy marshals spoke regularly

to the Browns on the telephone, urging them to surrender. The U.S.

Marshal also sent the Browns two letters, describing their legal

situation and asking them to give themselves up to authorities.

During this period, the USMS did not attempt to enter the

Browns' residence, which sat in the middle of their hundred-acre

property and had a "very difficult approach." The USMS began

surveillance of the Browns' property in January but carefully

avoided encounters with the Browns or their supporters that could

have resulted in violence.

Until September 2007, the USMS allowed individuals other

than the Browns to enter and exit the property. The USMS hoped

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this would give them an opportunity to insert undercover deputy

marshals and resolve the situation peacefully. The USMS also

repeatedly warned the public against giving certain forms of aid to

the Browns. The USMS made statements, through the media, "that the

Browns were convicted felons, they were resisting government

efforts to get them to surrender, that [USMS officers] were aware

that they had weapons at their home, that supporters were going

there," and that "if you aid or abet the Browns, you bring them

weapons or supplies or aid them in their effort to obstruct

justice, that you could be subjecting yourself to arrest and

prosecution."

Despite the USMS's warnings, all three defendants went to

New Hampshire to support the Browns after the couple's convictions.

Jason Gerhard, then twenty-one years old, from Brookhaven, New

York, traveled to the Browns' property several times between

February and August of 2007 and lived there for "a while" during

this period; Daniel Riley, then thirty-nine years old, from Cohoes,

New York, was a regular visitor between March and September 2007;

and Cirino Gonzalez, then thirty years old, from Alice, Texas,

stayed often with the Browns from early April until late June.

Each of the three defendants came to the New Hampshire

property anticipating violence and brought at least one weapon with

him to the Browns' home. After assessing the situation firsthand,

the defendants each helped prepare the Plainfield property to

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withstand attempts by the USMS to arrest the Browns. The three

worked together to help the couple acquire additional firearms,

ammunition, and explosive devices, some of which they placed

strategically around the property. Their efforts diminished

prospects for a peaceful resolution to the standoff and delayed

apprehension of the Browns.

When acquiring and stockpiling weapons for the Browns,

the defendants often cooperated closely with each other. For

instance, on May 17, 2007, Riley e-mailed Gonzalez to coordinate

the purchase of two .50 caliber rifles, capable of firing armor-

piercing rounds and equipped with specialized scopes for long-

distance shooting. Riley said that Gonzalez would "only need one

for the house." The next day, Riley arranged to meet Gonzalez at

a gun shop in Newport, New Hampshire, to fill out necessary

paperwork to acquire the guns. On May 23, Gonzalez and Riley met

at a Newport gun dealer, where each purchased a .50 caliber rifle.

Riley later e-mailed Gonzalez to ask if Edward Brown was "happy

with our progress," if Brown wanted additional "rounds" of

ammunition, and if the supporters in Plainfield had rifles. Two

days after Riley's query about riles, Gonzalez returned to Newport

to pick up his .50 caliber rifle. Gerhard also purchased a half-

dozen firearms for the Browns' resistance, most of which were found

on the Browns' property after their arrest.

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 The defendants invested considerable effort in

publicizing their efforts to arm the Browns' stronghold against the

USMS. They communicated their support of the Browns through e-

mails, online videos, and radio interviews, in which each asserted

his willingness to use deadly force to protect the couple from

apprehension. The USMS's knowledge that armed supporters of the

Browns were on the property was a factor the USMS considered when

delaying entering the Browns' property to apprehend the couple

during the first four months of the standoff.

The USMS's efforts went through several stages as events

played out. In the early morning of June 7, 2007, the USMS

deployed two teams of about fifty officers, including New Hampshire

state troopers, in an effort to arrest Edward Brown whom, it was

thought, would be found at the end of his driveway. A Special

Operations Group ("SOG") was formed to oversee the operation, which

included deputy U.S. Marshals from other districts. Armored

vehicles were dispatched to the area, a medical helicopter was

placed on alert, and aerial surveillance was conducted to determine

how many supporters were on the Browns' property. SOG leaders set

up to monitor the raid at a command post in Lebanon, New Hampshire.

The raid was called off, however, after Riley chanced

upon the deputy marshals while walking a dog. Riley was briefly

detained; he returned to the Browns' property soon after his

release. Following that attempt, the USMS increased its pressure

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on the Browns to surrender by cutting off electricity and mail

delivery to the Browns' property.

In the days after the USMS's June 7 operation, defendants

redoubled their efforts to fortify the Browns' property against any

entry by law enforcement and to arm themselves and others for a

bloody confrontation in the event the USMS attempted to take the

couple into custody. On June 8, 2009, Gerhard purchased 6,000

rounds of ammunition. The next day, Gerhard bought necessary

ingredients for manufacturing pipe bombs. The pipe bombs consisted

of cylinders of pipe filled with explosive powder, with space for

a fuse to be inserted; twenty-one pipe bombs were found on the

Browns' property after they were arrested.

Pipe bombs were not the only explosives the defendants

helped manufacture. Riley assisted in the construction of deadly

"one pound hand grenade[s]" consisting of nails taped to cans of

gunpowder with fuses inserted; the nails were intended as shrapnel

to increase the destructive force of the explosion. Working with

Edward Brown, Riley also built several spring-loaded "zip guns,"

which were designed to fire 12-gauge shells with great accuracy at

anyone who broke a trip wire. Finally, Riley obtained "highly

explosive" chemicals, which he and Edward Brown used to make a

series of one-pound bombs. Riley then positioned these bombs

"around the perimeter of the Browns' property."

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 In the meantime, the Browns' resistance continued to draw

media attention and supporters. In late June and July, the couple

hosted two "support Ed and Elaine Brown rall[ies]" on their

property. These planned events featured live music, as well as

remarks by Randy Weaver, and attracted many supporters.

By September 2007, the USMS had developed a new strategy

to apprehend the Browns. On September 12, deputy marshals arrested

all three defendants while each was away from the Plainfield

property. The Browns held press conferences in which they

discussed defendants' arrests. Three days later, the USMS barred

supporters from entering the Browns' property. Having successfully

isolated the Browns from some of their supporters, whose presence

had helped to deter arrest efforts, the USMS deployed agents, who

entered the property and arrested both Browns without incident on

October 4, 2007.

In addition to the explosives described above, federal

officers found seventeen firearms and about 40,000 rounds of

ammunition on the Browns' property after the couple's arrest.

A. Jason Gerhard

Gerhard first met Edward Brown when Brown agreed to

Gerhard's request for an interview for Gerhard's college newspaper.

The interview took place on the Plainfield property on February 18

and 19, after the Browns' conviction and more than one month after

Edward Brown became a fugitive. Gerhard wrote two articles based

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on his conversations with Brown, which appeared on March 7, 2007,

denounced the couple's "sham" trial and conviction, and detailed

the atmosphere at the Browns' property. Gerhard also reported that

he had traveled from New York to New Hampshire with a rifle in his

trunk, which he hoped "would provide enough cover fire to get the

hell out of there."

While staying with the Browns, Gerhard expected a violent

confrontation with law enforcement and prepared accordingly by

helping the couple secure weapons and fortify their property

against any attempts by the USMS to apprehend them. Gerhard bought

six guns from New Hampshire firearm dealers, four of which were

found at the Browns' home after their arrest. He also purchased

thousands of rounds of ammunition, as well as ingredients to

manufacture pipe bombs. In addition, Gerhard performed household

errands for the Browns.

Gerhard publicized his support for the Browns and his

anticipation of impending armed conflict with federal authorities.

He sent an e-mail to a group list, in which he made the threat

"from firsthand knowledge" that "if the feds choose to come into

the [Browns'] house, it would cause them a lot of pain." He added

that "[Edward] Brown let's [sic] us shoot on his property, which is

always good." On June 18, he sent a message to the same group,

saying, "Some of us believe that it is better to lie in wait and

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come with surprise at the right time. This sort of thinking does

make sense, yet how long can people wait?"

Gerhard made similar threats to law enforcement officials

in person. On July 17, 2007, Gerhard was involved in a traffic

accident in Lebanon, New Hampshire, while driving Elaine Brown's

car. When summoned to the scene, deputy U.S. Marshals impounded

Brown's vehicle. The next day, Gerhard went to the Lebanon Police

Department to complain and encountered several deputy marshals. A

"very agitated" Gerhard told the deputy marshals that they "had no

right to be there" and were enforcing "unconstitutional" laws. In

response to Gerhard's assertion that Edward Brown was a "patriot,"

one of the marshals asked how he could consider Brown a "patriot"

after the threats Brown had made against law enforcement officers

and their families. Gerhard replied that the officers "were not

following the Constitution" and "were now enemies of the

Constitution, which was treason, and the penalty for treason was

death."

Gerhard also admitted his efforts to arm the Browns. On

July 20, 2007, a New Hampshire state trooper pulled Gerhard over

for speeding in Charlestown, New Hampshire. The officer noticed a

rifle in Gerhard's rear seat; Gerhard explained that he had just

purchased it and that he was returning to the Browns' property,

where he had been staying.

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 On September 12, 2007, a deputy marshal and local police

arrested Gerhard, who had enlisted in the U.S. Army, at Fort

Leonard Wood U.S. Army Base in Missouri.

B. Cirino Gonzalez

Gonzalez learned about the Browns' activities in late

January 2007, considered the circumstances similar to protests at

Ruby Ridge and Waco, and decided to support the Browns. In early

April, Gonzalez packed some belongings, including a handgun and a

semiautomatic rifle, and drove from Texas to the Browns'

Plainfield, New Hampshire, property. He stayed with the Browns in

Plainfield for about two-and-a-half months.

During his stay, Gonzalez served, in his own words, as

"volunteer security" for both Browns. In that capacity, he

routinely carried at least one firearm. At one meeting in the

Browns' home, Gonzalez was observed standing behind the couple,

wearing a holstered handgun. As part of a video prepared by Brown

sympathizers and made available to the public, Gonzalez was

recorded standing next to Randy Weaver on the Browns' porch with a

rifle slung over his shoulder. Aerial surveillance by the USMS on

the morning of the failed June raid showed Gonzalez walking several

feet behind Edward Brown with a rifle over his shoulder as the two

searched for Riley.

In addition to providing personal security, Gonzalez

helped further stock the Browns' arsenal. As described above, he

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collaborated with Riley to purchase a .50 caliber rifle, which he

later brought to the Browns' residence and kept next to his bed.

Gonzalez also managed a website which publicized the Browns'

actions.

At some point after the USMS's failed June raid, Gonzalez

gave a video-recorded interview to a "We The People Radio Network"

correspondent named "King Mob" from the Browns' property. Gonzalez

declared,

The only reason why [federal law enforcement]
haven't rolled in here is because they know they
have people that have been trained by their own
military and by their own law enforcement that are
here now literally . . . and they know how to use
the weapons they have been given . . . . We have
weapons and we are going to defend ourselves
because we actually know what's going on.

Gonzalez wore a shoulder holster throughout the interview. The

video was made available to the public online.

Gonzalez left Plainfield in late June. Gonzalez

continued to communicate with Riley, and he received several

updates about events unfolding on the Browns' property. U.S.

Marshals arrested Gonzalez in Alice, Texas, on September 12, 2007.

Gonzalez was the only defendant to testify at trial.

C. Daniel Riley

Daniel Riley learned of Edward and Elaine Brown's

"problems" with federal law enforcement in February 2007. Between

March and September of that year, he traveled repeatedly from his

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home in Cohoes, New York, to the Browns' Plainfield property and

was described as the Browns' "very good friend."

Riley posted an Internet video on March 2, 2007,

expressing support for the Browns' "revolution" against the

"thieving international bankers" who "control [the U.S.] government

and are out to destroy [the] country." Riley pledged to give the

couple a "few things" to aid in their resistance. As he had

pledged, Riley brought a 12-gauge shotgun and other weapons with

him to the Plainfield property.

As the standoff continued, Riley helped get firearms and

explosives for the Browns in anticipation of a violent struggle

with law enforcement. Riley coordinated his and Gonzalez's May

purchase of two rifles and instructed Gonzalez that only one of the

weapons would be needed "for the house." Riley asked Gonzalez if

Edward Brown wanted more ammunition. Riley also manufactured a

series of explosive booby traps, some of which he personally

deployed around the Browns' property.

Riley attempted to persuade Gonzalez to return to the

Browns' property. On July 20, about a month after Gonzalez had

returned to Texas, Riley e-mailed him, urging, "We have a war to

win and we need everybody."

Riley repeatedly expressed his willingness to use lethal

force to protect the Browns. On July 28, Riley e-mailed several

individuals, including Gonzalez, to report that everyone on the

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property was "at battle stations" after hearing noises in the

woods. The next day, again believing that the marshals were

preparing to arrest the Browns, Riley called into a radio show from

inside the Browns' home and informed listeners that supporters were

on "high alert," had their guns "unchambered," and were prepared to

go "toe to toe" with the USMS to resist "tyranny" and protect the

Browns. Riley sent another e-mail in August 2007 in which he

stated that "the number one most important thing" the Browns needed

was "people to come and stand to their death, if necessary, to save

our country . . . , but no homos, lol."

U.S. Marshals arrested Riley in Cohoes on September 12,

2007. A search of his residence revealed a rifle signed by Edward

Brown and Randy Weaver.

II. Defendants' Arguments on Appeal

On appeal, the defendants challenge the indictment, the

trial, and their sentences. We reject each of their arguments and

affirm.

A. Arguments Related to the Indictment

The defendants raise three distinct challenges to the

indictment. First, Gerhard and Riley assert that the offenses

alleged in Count 1, 18 U.S.C. § 372, and Count 2A, id. §§ 371 and

111(a), on which they were convicted, are multiplicitous. Second,

Gerhard claims that the crimes charged in Count 1, Count 2B, id.

§§ 371 and 3, and Count 3, id. § 3, are also multiplicitous.

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Finally, all three defendants argue the indictment insufficiently

alleged the Browns' original offenses of conviction underlying the

defendants' convictions on Count 3 as accessories after the fact.

We reject all three claims.

1. Gerhard and Riley's Separate Convictions under 18 U.S.C.
§ 372 and 18 U.S.C. §§ 371 and 111(a) Are Not on
Multiplicitous Counts

Gerhard and Riley argue that their convictions under 18

U.S.C. § 372 (Count 1) and 18 U.S.C. §§ 371 and 111(a) (Count 2A)

constituted multiple punishment for the same offense, in violation

of the Double Jeopardy Clause, U.S. Const. amend. V. Their claim

was properly raised before the district court, so our review is de

novo. E.g., United States v. Lanoue, 137 F.3d 656, 661 (1st Cir.

1998).

Defendants may be subjected to multiple punishment for

the same conduct under more than one statute so long as the

legislature intended to create separate offenses. United States v.

LeMoure, 474 F.3d 37, 43 (1st Cir. 2007) (citing Missouri v.

Hunter, 459 U.S. 359, 365 (1983)). Under the judicially created

analysis for discerning legislative intent, we examine whether each

offense "requires proof of an additional fact which the other does

not." Blockburger v. United States, 284 U.S. 299, 304 (1932); see

also United States v. Nascimento, 491 F.3d 25, 48 (1st Cir. 2007).

The conduct described in one offense must necessarily include the

conduct of the second offense to result in a double jeopardy

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violation. See, e.g., Ball v. United States, 470 U.S. 856, 862

(1985).

In fact, the two charges at issue reach conduct that is

not necessarily the same, and, to the extent that the charges apply

to overlapping conduct, Congress intended to create separate

offenses. Congress chose language that clearly demonstrates that

these two offenses are distinct and that one is not a lesser

included offense of the other. No double jeopardy problem arises.

These statutes have two separate foci. Congress intended

the pertinent portion of § 372 to criminalize conspiracy to prevent

a U.S. officer from discharging his duties. By contrast, the

conspiracies charged in §§ 371 and 111(a) are focused, not on

prevention from discharge of duties, but on conspiracies to

interfere with an officer while in the performance of his duties.

That intent is evident from the texts of § 372 and § 111 and is

reinforced by the provisions' legislative histories.

We begin with the text of the statutes in the two

charges. Section 372, Count 1, makes it criminal for

two or more persons in any State, Territory,
Possession, or District [to] conspire to prevent,
by force, intimidation, or threat, any person from
accepting or holding any office, trust, or place of
confidence under the United States, or from
discharging any duties thereof, or to induce by
like means any officer of the United States to
leave the place, where his duties as an officer are
required to be performed, or to injure him in his
person or property on account of his lawful
discharge of the duties of his office, or while
engaged in the lawful discharge thereof, or to

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 injure his property so as to molest, interrupt,
hinder, or impede him in the discharge of his
official duties.

18 U.S.C. § 372. Defendants were charged under only that portion

of the statute criminalizing conspiracy "to prevent, by force,

intimidation, or threat, any person from . . . from discharging any

duties" as an officer of the United States.

As for the other charge, Count 2A, a conspiracy to

violate § 111(a), we read § 371 and § 111(a) together because

together they define the crime. Section 371, the general

conspiracy statute, creates criminal liability, inter alia, for

"two or more persons [who] conspire . . . to commit any offense

against the United States," provided "one or more of such persons

do any act to effect the object of the conspiracy." Id. § 371.

Section 111(a) proscribes "forcibly assault[ing], resist[ing],

oppos[ing], imped[ing], intimidat[ing], or interfer[ing] with a

[United States Officer] while engaged in or on account of the

performance of official duties." Id. § 111(a).

The question of whether Count 2A requires proof of facts

not required under Count 1 is easily answered. The offense charged

under §§ 371 and 111(a) requires proof of at least two facts that

§ 372 does not: (1) that defendants conspired to use force and (2)

that at least one of them acted to achieve the object of the

conspiracy.

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 The defendants' more serious argument turns on whether

the reverse is also true: whether § 372, charged in Count 1,

requires proof of at least one fact that §§ 371 and 111(a), charged

in Count 2A, does not.

Defendants concede that § 372 is concerned with

conspiracy to "prevent" an officer from discharging his duty,

whereas §§ 371 and 111(a) address conspiracy to "resist[],

oppose[], impede[], or interfere[]" with an officer presently

engaged in fulfilling his duties. They urge that the words "to

prevent . . . from" in § 372 are, "[f]or all intents and purposes,"

synonymous with the terms used in § 111(a), as charged under § 371.

In essence, they argue the phrase "to prevent . . . from

discharging" the duties of his office, 18 U.S.C. § 372, means the

same as to "impede[] . . . while engaged in or on account of the

performance of official duties," id. § 111(a).

The government responds that the statutes address

different time frames. It asserts that "prevent" should be given

its common meaning, "to keep from happening." Merriam Webster's

Collegiate Dictionary 924 (10th ed. 1993). The common meaning of

a term is a useful indication of intent. See, e.g., Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 383 (1992); see also SEC

v. Tambone, 597 F.3d 436, 442-43 (1st Cir. 2010) (en banc). Under

the government's construction, § 372 requires proof of intent to

keep a federal officer from beginning performance of his duty by

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preventing the discharge of the duty. By contrast, the plain

language of §§ 371 and 111(a) mandates a showing that defendants

conspired to disrupt a federal officer while presently engaged in

the discharge of his duty or on account of his duties.

There is no double jeopardy problem for several different

reasons. First, § 372 itself makes clear that to prevent an

officer from performing his duty is not the same as impeding an

officer in the performance of his duty. Different facts are

required for conviction under § 372 than are required under

§§ 111(a) and 371. The common meaning of "to prevent . . . from"

is future oriented, not present oriented. Second, § 111's

enactment history shows that Congress felt the existing protection

under § 372 was insufficient and that it needed to enact § 111.

Third, Congress retained § 372 after it enacted the general

conspiracy statute, demonstrating that it intended § 372 to reach

different conduct than §§ 371 and 111.

The charge in the indictment Count 1 under § 372 quoted

only one clause of several in the statute, each of which defines a

discrete crime. The balance of § 372's text gives context to

congressional intent as to the meaning of "to prevent."3 See

Mullane v. Chambers, 333 F.3d 322, 330 (1st Cir. 2003) (noting that

statutory language must be defined with "reference to the 'specific

3
Indeed, we have, in a different context, defined
"prevent" more broadly than we do here. See Wood v. Spencer, 487
F.3d 1, 7 (1st Cir. 2007).

-23-
context in which that language is used, and the broader context of

the statute as a whole'" (quoting Robinson v. Shell Oil Co., 519

U.S. 337, 341 (1997))); see also United States v. Jimenez, 507 F.3d

13, 19 (1st Cir. 2007). In this context, Congress intended the

words "to prevent . . . from" to have a different meaning than that

argued by the defendants.

Several additional clauses of § 372 reveal two points.

First, Congress did not equate "to prevent . . . from" discharging

duties with "impede" or "hinder" in the discharge of duties.

Second, Congress drew temporal distinctions between different

opportunities to disrupt federal officers performing their duties,

which again give "prevent" a different meaning than to "impede."

We must give significance to Congress's choice of words. See,

e.g., Smith v. United States, 508 U.S. 223, 229 (1993).

In the other clauses following the use of "prevent,"

Congress used words such as "molest, interrupt, hinder, or impede"

in the discharging of the officer's duties. 18 U.S.C. § 372. This

shows that "prevent . . . from" was meant to denote conduct

different from "molest[ing], interrupt[ing], hinder[ing], or

imped[ing] . . . in." See United States v. Ahlers, 305 F.3d 54,

59-60 (1st Cir. 2002) (noting that "when Congress uses certain

words in one part of a statute, but omits them in another," we

"presume that this differential draftsmanship was deliberate").

-24-
 Further, 18 U.S.C. § 372 recognizes a series of temporal

distinctions. The clause under which defendants were charged

addresses preventing officials from accepting or holding federal

office or from discharging their duties. Id. The next clause

addresses inducing officers to leave the place where duties are to

be performed. Id. Another clause addresses injuring an officer

"on account of . . . or while engaged in" discharging of his

duties. Id. A final clause addresses injuring the officer's

property "so as to molest, interrupt, hinder, or impede him in the

discharge of his . . . duties." Id. Together, these clauses cover

a range of time frames before, during, and after the assumption and

execution of the responsibilities of federal office. See Carr v.

United States, 130 S. Ct. 2229, 2236 (2010) ("Congress' use of a

verb tense is significant in construing statutes." (quoting United

States v. Wilson, 503 U.S. 329, 333 (1992) (internal quotation

marks omitted))).

These distinctions demonstrate that the terms "molest,"

"interrupt," "hinder," and "impede" are not synonymous with the

term "prevent." Instead, "prevent" describes conspiracies to

disrupt an officer's duties before the officer begins to discharge

them. Not only is this construction consistent with the ordinary

meaning of the word prevent, Merriam Webster's Collegiate

Dictionary, supra, at 924, it is also amply supported by the

-25-
statutory context in which the word appears, see Mullane, 333 F.3d

at 330.

Second, the legislative histories of both § 372 and § 111

reinforce our construction. Section 372, the oldest of the

pertinent statutes, was originally enacted in 1861 and has remained

essentially unchanged since.4 See H.R. Rep. No. 80-304 (1947),

reprinted in 1948 U.S.C.C.A.N. 2477. The predecessor to § 111 was

adopted in 1934, at the urging of the U.S. Attorney General.

United States v. Feola, 420 U.S. 671, 681 & n.16 (1975). Later,

Congress substantially revised existing conspiracy laws,

eliminating numerous "special conspiracy" provisions and adopting

§ 371. H.R. Rep. No. 80-304, reprinted in 1948 U.S.C.C.A.N. 2475,

2476. Section 372 was one of just ten special conspiracy laws that

survived this consolidation. Id. A reason Congress retained the

ten, including § 372, was to preserve the greater punishment

attached to them. Id.

Significantly, the adoption of § 111's predecessor

reflected Congress's determination that the existing, piecemeal

statutory scheme–-including § 372–-was insufficient to protect

federal officers' discharge of their duties. See Feola, 420 U.S.

4
Section 372 has been amended twice to expand the scope of
its jurisdiction: once in 1909 to include "District[s]" and again
in 1948 to include "Possession[s]." H.R. Rep. No. 80-304 (1948),
reprinted in 1948 U.S.C.C.A.N. 2477. It was also amended in 2002
to remove a $5,000 cap on fines for violations of the statute,
Criminal Law Technical Amendments Act of 2002, Pub. L. No. 107-273,
§ 4002(d)(1)(D), 116 Stat. 1759, 1861 (2002).

-26-
at 680 n.16 (quoting a letter from the U.S. Attorney General that

appeared in the statute's legislative history, which urged that

"[t]he need for general legislation . . . for the protection of

Federal officers and employees other than those specifically

embraced in [existing] statutes . . . becomes increasingly apparent

every day"); see also id. at 681 ("Congress clearly was concerned

with the safety of federal officers insofar as it was tied to the

efficacy of law enforcement activities."). Thus, § 111 must be

seen as not having an identical meaning to § 372.

Third, with § 111 on the books, the 1948 enactment of

§ 371 gave federal authorities a further tool: a general conspiracy

statute for prosecuting individuals who conspired to violate § 111.

And yet Congress deliberately retained § 372,5 a fact that bolsters

our conclusion that Congress intended § 372 to reach conduct under

the "to prevent . . . from" clause distinct from that which could

be prosecuted under §§ 371 and 111.

To the extent that defendants urge us to invoke the rule

of lenity, see, e.g., Heflin v. United States, 358 U.S. 415, 419

(1959), their reliance on the rule is misplaced. "[T]he rule of

lenity only applies if, after considering text, structure, history,

5
The pertinent House Report explains that special
conspiracy statutes were retained "(1) where the conspiracy would
constitute the only offense, or (2) where the punishment provided
in this section would not be commensurate with the gravity of the
offense." H.R. Rep. No. 80-304 (1947), reprinted in 1948
U.S.C.C.A.N. 2475, 2476.

-27-
and purpose, there remains a grievous ambiguity or uncertainty in

the statute such that the Court must simply guess as to what

Congress intended." Barber v. Thomas, 130 S. Ct. 2499, 2508-09

(2010) (citations omitted) (internal quotation marks omitted).

Indeed, the rule of lenity is founded in significant part

"on the plain principle that the power of punishment is vested in

the legislative, not in the judicial department." United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.); see

also id. ("It is the legislature, not the Court, which is to define

a crime, and ordain its punishment."). Where the legislature has

clearly defined the crime and punishment, there is no room for the

judicially crafted rule of lenity. In light of the "text,

structure, history, and purpose" of the statutes at issue, we

perceive no ambiguity in Congress's intent.

2. Gerhard's Convictions under 18 U.S.C. § 372, 18 U.S.C.
§§ 371 and 3, and 18 U.S.C. § 3 Are Not Multiplicitous

Gerhard makes a separate, undeveloped argument that his

convictions under 18 U.S.C. § 372 (Count 1), 18 U.S.C. §§ 371 and

3 (Count 2B) (conspiracy to be an accessory after the fact), and 18

U.S.C. § 3 (Count 3) (being an accessory after the fact) are

multiplicitous. Gerhard did not argue this point to the district

court, so we review it for plain error. E.g., United States v.

Patel, 370 F.3d 108, 115 (1st Cir. 2004). The four-part test for

plain error review requires Gerhard to show:

-28-
 (1) there is an "error;" (2) the error is "clear or
obvious, rather than subject to reasonable
dispute;" (3) the error "affected the appellant's
substantial rights, which in the ordinary case
means" it "affected the outcome of the district
court proceedings;" and (4) "the error seriously
affect[s] the fairness, integrity or public
reputation of judicial proceedings."

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (alteration

in original) (quoting Puckett v. United States, 129 S. Ct. 1423,

1429 (2009)); see also United States v. Moran, 393 F.3d 1, 13 (1st

Cir. 2004).

Under any standard, Gerhard's claim is meritless. Counts

1, 2B, and 3 each mandate evidence of facts the others do not.

Blockburger, 284 U.S. at 304; see also United States v. Gomez-Ruiz,

931 F.2d 977, 979-80 (1st Cir. 1991) (comparing multiple statutes).

We begin by comparing Counts 1 and 3. The facts required

for conviction under these counts are obviously distinct. Count 3,

which charged a violation of 18 U.S.C. § 3, the accessory-after-

the-fact statute, mandated proof that a defendant "knowing that an

offense against the United States ha[d] been committed, receive[d],

relieve[d], comfort[d] or assist[ed] the offender in order to

hinder or prevent his apprehension, trial or punishment." Id.

Count 1 did not. Id. § 372. And Count 1 required proof, unlike

Count 3, that the defendant conspired to prevent a federal officer

from performing his duty. Id.

Count 1 was also not multiplicitous with Count 2B, which

alleged a conspiracy to violate § 3. Unlike Count 1, Count 2B

-29-
demanded proof of an overt act to effect the object of the

conspiracy and evidence that the conspirators sought to violate

§ 3. 18 U.S.C. §§ 371 and 3. Count 1, as stated, required proof

of entirely different conduct. Id. § 372.

Finally, despite any superficial similarity, Count 2B

(conspiracy to be an accessory after the fact) and Count 3 (being

an accessory after the fact) are also not multiplicitous. "[I]t

has long been established that conspiracy to commit a crime is not

the same offense as the substantive crime for double jeopardy

purposes because the agreement to do the act is distinct from the

[completed] act itself." United States v. Fornia-Castillo, 408

F.3d 52, 69 (1st Cir. 2005) (alteration in original) (internal

quotation marks and citation omitted).

3. The Indictment Adequately Alleged the Federal Crimes
Committed by the Browns

All three defendants claim that the accessory counts in

the indictment are defective because Counts 2B and 3 stated only

that the defendants,

knowing that offenses against the United States had
been committed by Edward Brown and Elaine Brown,
received, relieved, comforted and assisted Edward
Brown and Elaine Brown in order to hinder and
prevent their apprehension, trial and punishment.

Counts 2B and 3 also incorporated earlier paragraphs, which alleged

(1) that a jury had returned verdicts on January 18, 2007,

"convicting Edward Brown and Elaine Brown of conspiracy and a

number of federal tax crimes;" (2) that a federal warrant was

-30-
issued against Edward Brown on January 12, 2007, when he failed to

appear for the completion of his trial; (3) that a federal arrest

warrant was issued for Elaine Brown's arrest postconviction when

she violated the conditions of her release pending sentencing; (4)

that on April 24, 2007, the Browns were sentenced to 63 months in

prison; and (5) that while the Browns were fugitives, the USMS made

efforts to arrest them.

The defendants claim that the indictment was insufficient

because it did not name or otherwise specifically identify the

Browns' offenses of conviction.6 None of the defendants raised

this objection to the trial court, so appellate review is for plain

error. United States v. Stein, 233 F.3d 6, 22-23 (1st Cir. 2000).

The defendants' argument is misplaced.

The initial issue is whether the indictment gave the

three defendants adequate notice of the charges they faced, the

elements of the crimes they allegedly committed, and sufficient

information for double jeopardy purposes. Hamling v. United

States, 418 U.S. 87, 117-18 (1974); see also Russell v. United

States, 369 U.S. 749, 767-69 (1962); United States v. Cianci, 378

F.3d 71, 80 (1st Cir. 2004). The accessory-after-the-fact statute,

6
It is unclear if they are arguing that the indictment was
defective because it did not supply citations to the U.S. Code. If
so, defendants' argument turns on its head the usual rule that
statutory citations cannot normally supply a missing element in an
indictment. See United States v. McLennan, 672 F.2d 239, 243 (1st
Cir. 1982).

-31-
18 U.S.C. § 3, makes it a crime for a defendant, "knowing that an

offense against the United States has been committed, [to]

receive[], relieve[], comfort[] or assist[] the offender in order

to hinder or prevent his apprehension, trial or punishment." Id.

Here, the fact that the indictment charged that the

Browns were convicted of conspiracy and tax crimes establishes

adequate notice to defendants that "an offense against the United

States ha[d] been committed." The government gave notice to

defendants it intended to prove that they had knowledge that the

Browns had been convicted of tax crimes and conspiracy and that,

with that knowledge, defendants assisted the Browns to hinder or

prevent the Browns' apprehension or punishment. All the necessary

elements of § 3 were charged, and the defendants had sufficient

notice of the charges against them for double jeopardy purposes.

Under these circumstances,7 no more was needed.8

7
We need not address the entirely different situation of
a defendant's assistance to an offender in the period preceding
conviction. Those circumstances could raise questions regarding
the adequacy of notice to a defendant of what underlying offense
the defendant was supposedly an accessory to. In that situation,
the defendant could argue he must have fair notice of the elements
of the underlying offense he allegedly aided to be sure he has the
requisite knowledge. See, e.g., United States v. Graves, 143 F.3d
1185, 1190 (9th Cir. 1998).
8
If Gerhard and Gonzalez intended to raise an additional
argument under Apprendi v. New Jersey, 530 U.S. 466 (2000), their
claim "lacks sufficient developed argumentation and is therefore
waived." United States v. Gonzalez-Melendez, 594 F.3d 28, 34 (1st
Cir. 2010).

-32-
 Finally, for the first time on appeal, Gerhard and Riley

appear to argue that the accessory statute cannot apply to conduct

that occurred after the Browns' conviction. The plain text of the

statute here reaches conduct that assists a postconviction offender

to avoid apprehension or punishment. 18 U.S.C. § 3. They have no

claim. Seahorse Marine Supplies, Inc. v. P.R. Sun Oil Co., 295

F.3d 68, 75 (1st Cir. 2002) ("[W]hen a statute's text is

encompassing, clear on its face, and productive of a plausible

result, it is unnecessary to search for a different, contradictory

meaning . . . .").

B. Arguments Related to the Trial

Defendants' objections to their trial fall into five

general categories: (1) a frivolous challenge by Riley and Gonzalez

to federal jurisdiction over their crimes, (2) arguments by Riley

pertaining to his representation, (3) additional claims by Riley,

(4) arguments by all three defendants contesting the jury

instructions and the verdict form, and (5) Gerhard and Gonzalez's

assertion that the evidence was insufficient to support their

convictions on Counts 2B and 3. Each of defendants' trial claims,

which we address in roughly chronological order, lacks merit.

1. The United States Had "Territorial Jurisdiction" to
Prosecute Defendants

Riley, joined by Gonzalez, makes an argument that by any

objective measure could not have been advanced in good faith nor

advanced consistently with the obligations of counsel to the court.

-33-
See, e.g., Smith v. Robbins, 528 U.S. 259, 272 (2000) ("[A]n

attorney is under an ethical obligation to refuse to prosecute a

frivolous appeal." (internal quotation marks omitted)); see also

Pimentel v. Jacobsen Fishing Co., Inc., 102 F.3d 638, 640 (1st Cir.

1996) ("An appeal is frivolous if the . . . arguments are wholly

without merit." (internal quotation marks omitted)).

They primarily argue that only New Hampshire, and not the

United States, has jurisdiction to prosecute crimes occurring in

Plainfield, New Hampshire. They also argue that there is no venue

in a federal courthouse in Concord, New Hampshire. Their theory is

that either the United States must buy the land on which the

offense occurred or the land must have been ceded by New Hampshire

to the federal government for federal criminal laws to attach.

Defendants' murky and confused argument seems to posit that this

federal prosecution entails a violation of the sovereignty of the

state of New Hampshire and that these defendants may assert

whatever sovereign rights New Hampshire has. The claim is utterly

frivolous and has been rejected before by this court and others.9

9
Defendants, who were not themselves convicted of tax
evasion, seem to have modeled their argument on "the hackneyed tax
protester refrain that federal criminal jurisdiction only extends
to the District of Columbia, United States territorial possessions
and ceded territories." United States v. Collins, 920 F.2d 619,
629 (10th Cir. 1990) (collecting cases). Those arguments have been
sanctioned as frivolous, e.g., id. at 623, 633-34, and are no less
so when made in the context of this case.

-34-
See, e.g., United States v. Lussier, 929 F.2d 25, 27 (1st Cir.

1991).

The argument ignores the fact that New Hampshire chose to

enter into a national union governed by the Constitution. In

United States v. Worrall, 2 U.S. (2 Dall.) 384 (1798), the Supreme

Court affirmed that the enumerated powers granted to Congress in

Article I, § 8, included the general power "to create, define, and

punish, crimes and offences, whenever they shall deem it necessary

and proper by law to do so, for effectuating the objects of the

[federal] government." Id. at 394; see also United States v.

Comstock, 130 S. Ct. 1949, 1957-58 (2010) (noting that the

Constitution "grants Congress broad authority" to create federal

crimes, which Congress "routinely exercises," and collecting

examples).

There is no offense to state sovereignty by this federal

prosecution, nor has New Hampshire claimed that there is. In fact,

New Hampshire deployed its own law enforcement to help federal

authorities arrest the Browns. It is black-letter law that an act

defined as a crime by both national and state sovereignties is "an

offense against the peace and dignity of both and may be punished

by each." United States v. Lanza, 260 U.S. 377, 382 (1922). This

dual-sovereignty doctrine allows for a federal prosecution even

after a prior state prosecution for the same conduct. E.g., Abbate

v. United States, 359 U.S. 187, 195-96 (1959).

-35-
 Congress has chosen to vest jurisdiction and venue over

federal crimes in the federal courts. Congress has given the U.S.

district courts exclusive original jurisdiction over all offenses

against the laws of the United States. 18 U.S.C. § 3231. That

jurisdiction is not limited to crimes which occur on federally

owned property, nor is a state's permission needed for federal

prosecution. See United States v. Hamilton, 263 F.3d 645, 655 (6th

Cir. 2001); United States v. Sitton, 968 F.2d 947, 953 (9th Cir.

1992), abrogated on other grounds by Koon v. United States, 518

U.S. 81 (1996); see also Cantrell v. Reno, 36 F. App'x 651, 652

(1st Cir. 2002).

Defendants' argument depends upon severely misreading the

text of the U.S. Constitution. Defendants point to clause 17 of

Article I, § 8, the Exclusive Legislation Clause, which vests

Congress with the power

[t]o exercise exclusive Legislation in all Cases .
. . . and to exercise like Authority over all
Places purchased by the Consent of the Legislature
of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards,
and other needful Buildings.

Id. The argument misses the point that the United States has not

claimed it has the exclusive right to promulgate laws over the

lands where the crimes were committed; New Hampshire also has

jurisdiction. So the clause is not at issue.

The Exclusive Legislation Clause has been used to limit

a state's authority to regulate activities on U.S. military bases

-36-
and similarly exclusive federal areas/buildings absent permission

from Congress. See, e.g., United States v. State Tax Comm'n, 412

U.S. 363, 372-73 (1973); Collins v. Yosemite Park & Curry Co., 304

U.S. 518, 527-30 (1938); see also S. Lipsky, The Citizen's

Constitution 81 (2009) ("In 43 Federalist, Madison offers a

straightforward explanation for this clause: 'The public money

expended on such places, and the public property deposited in them,

require that they should be exempt from the authority of the

particular State.'").

Finally, there is no basis for a venue objection when the

trial took place in Concord, New Hampshire, and a judge from the

District of Maine sat because the New Hampshire judges were

recused. See, e.g., United States v. Scott, 270 F.3d 30, 35 (1st

Cir. 2001).

2. Riley's Objections to His Representation Fail

a. Riley's Sixth Amendment Right to Represent
Himself Was Not Violated

Through his counsel on appeal, Riley argues that his

Sixth Amendment right to proceed without counsel, recognized in

Faretta v. California, 422 U.S. 806 (1975), was violated at trial.

We give a brief chronology of Riley's representation. On

September 13, 2007, Riley made his initial appearance and asked

that counsel be appointed. His first attorney was appointed that

day and moved to withdraw less than three weeks later, on October

2, 2007. On October 22, 2007, Riley moved to proceed without

-37-
counsel. The court allowed the first counsel to withdraw, but it

denied without prejudice Riley's motion because the court was not

convinced that Riley's waiver of counsel was knowing and voluntary.

At the same time, it appointed a second lawyer to represent Riley.

On December 7, 2007, the court held a brief hearing on

Riley's renewed request to proceed without a lawyer, granted the

request, and converted the second lawyer to standby counsel.

On March 14, 2008, at a pretrial conference, Riley

changed his mind and requested that his standby counsel represent

him at trial. The court granted his request and counsel did

represent Riley at trial, which started on March 20, 2008.

Riley's argument seems to proceed in several parts.

First, Riley acknowledges that he was allowed to proceed without

counsel earlier,10 when he claimed his right to self-representation.

The court then appointed standby counsel. He does not complain

about having been appointed standby counsel. See McKaskle v.

Wiggins, 465 U.S. 168, 176-77 (1984) (describing the role of

standby counsel).

On March 14, six days before trial, Riley asked the court

to permit his then-standby counsel to represent him at trial.

Riley concedes, and the record is quite clear, that he made this

10
To the extent that Riley claims he did not ask for
counsel to be appointed at his first appearance, the record flatly
contradicts his assertion. Riley also makes a separate complaint,
which we discuss later, that his first appointed counsel provided
ineffective assistance.

-38-
request and the court granted it.11 Riley's complaint on appeal is

that he felt he was "forced" into asking for appointed counsel

because he did not feel prepared to represent himself at trial.

This feeling was apparently connected to problems he had getting

documents when he was representing himself but had standby counsel.

This scenario does not come close to invalidating Riley's

voluntary, "knowing[,] and intelligent[]" waiver of his right to

proceed without counsel. Faretta, 422 U.S. at 835. He was

"literate, competent, and understanding," id., and he voluntarily

exercised his informed free will when he asked for trial counsel.

He was not forced to do anything. As to difficulties in Riley's

self-representation, the court did address his concerns about

delays in getting certain trial materials when Riley requested

trial counsel.

The record is clear that defendant "kn[ew] what he [wa]s

doing and his choice [wa]s made with eyes open." Adams v. United

States ex rel. McCann, 317 U.S. 269, 279 (1942).

11
There was no abuse of discretion in the district court's
denial of a continuance of the trial date to Riley's counsel, who
had been involved in the case for almost six months. Riley has
failed to "identify specific ways in which the court's
[purportedly] erroneous denial of a continuance prejudiced his . .
. defense." United States v. Rodriguez-Marrero, 390 F.3d 1, 22 &
n.10 (1st Cir. 2004).

-39-
 b. Riley's Ineffective Assistance of Counsel Claim
Is Premature

Riley's second claim as to counsel, presented for the

first time on appeal, is that his first appointed counsel had a

conflict of interest and therefore provided ineffective assistance.

This claim was not developed before the trial court and Riley's

brief is devoid of citation to any facts.

This claim is a poster child for invoking the rule that

we will decline to hear fact-dependent ineffective assistance

claims presented for the first time on appeal. United States v.

Uribe-Londoño, 409 F.3d 1, 4 (1st Cir. 2005); United States v.

Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (collecting cases). We

routinely apply that rule to ineffective assistance claims under

Strickland v. Washington, 466 U.S. 668 (1984), including conflict-

of-interest claims. E.g., United States v. Torres-Rosario, 447

F.3d 61, 64 (1st Cir. 2006).

3. Riley's Remaining Claims Related to the Trial Are
Meritless

a. Riley Was Not Denied the Opportunity to Present a
Self-Defense Theory at Trial

Riley asserts, for the first time on appeal and without

any citation to the record, that the district court did not allow

him to argue a theory of self-defense as an affirmative defense to

his crimes. At trial, the district court asked if any defendant

intended to assert this theory. Riley's counsel explicitly

responded that he had no intention of doing so. Riley never

-40-
requested a jury instruction on self-defense, nor has he cited a

single instance in which he was denied an opportunity to introduce

evidence on this theory. The argument fails.

b. Riley Was Properly Convicted under Count 6,
Though He Was Already Subject to an Enhanced
Penalty for Using a Dangerous Weapon

Riley challenges his conviction on Count 6, for carrying,

using, or possessing a firearm or destructive device in connection

with a crime of violence, 18 U.S.C. § 924(c)(1)(A)-(B). Relying on

a 1980 case, Busic v. United States, 446 U.S. 398 (1980), he urges,

for the first time on appeal, that his conviction on this count was

precluded by the fact that he was already subject to a penalty

enhancement for the use of a dangerous weapon for his conviction

under Count 2, 18 U.S.C. § 111(a)(2). See Busic, 446 U.S. at 399-

400 (holding that § 924(c) does not apply to a defendant "who uses

a firearm in the course of a felony that is proscribed by a statute

which itself authorizes enhancement if a dangerous weapon is

used"). This argument fails.

Congress explicitly "amended § 924(c) to include a

mandatory penalty for the use of a firearm during a federal crime

of violence and to statutorily overrule . . . Busic." United

States v. Centeno-Torres, 50 F.3d 84, 85 (1st Cir. 1995) (per

curiam) (footnote omitted); see also id. ("Congress intended to

completely revise § 924(c) so that it would serve as a cumulative

-41-
punishment in addition to that provided for the underlying violent

crime.").

4. There Was No Error in the Verdict Form or Jury
Instructions

a. The District Court's Instructions on Reasonable
Doubt Were Correct

Gerhard and Gonzalez claim the court committed reversible

error when it instructed that

[a] reasonable doubt does not mean a mere
possibility that the defendant may be not guilty;
nor does it mean a fanciful or imaginary doubt, nor
one based upon groundless conjuncture. It means a
doubt based upon reason.

They argue there was a reasonable likelihood the jury misunderstood

the reasonable doubt standard. See Victor v. Nebraska, 511 U.S. 1,

6 (1994) (noting that the correct standard for prejudice is not

whether jurors could have applied an instruction unconstitutionally

but whether there is a reasonable likelihood the jurors did so).

Their objections are misplaced both as to the specific language

cited and in the context of the instructions overall.

Defendants concede it is permissible to instruct the jury

that doubt may not be imaginary or speculative, but they say even

a small doubt may be enough to be a reasonable doubt. They rely on

Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), overruled in

part by Estelle v. McGuire, 502 U.S. 62, 73 n.4 (1991), which

stated that certain terms, not those used here, impermissibly

-42-
suggest a higher degree of doubt than is in fact required. Id. at

41.

In Victor, the Supreme Court expressly found no error in

an instruction that reasonable doubt is "not a mere possible

doubt." 511 U.S. at 17. There, as here, the phrase was followed

by a description that reasonable doubt is not "some possible or

imaginary doubt." Id. Following the command of Victor, we have

found no error in similar instructions. See United States v.

Rodriguez, 162 F.3d 135, 145-46 (1st Cir. 1998).

The language under attack, in any event, must be seen

against the charge as a whole. Id. at 145. In its instructions to

the jury, the court repeatedly emphasized the presumption of

innocence and the government's burden of proof. The reasonable

doubt instruction was not error and there was no reasonable

likelihood the jury was misled.

b. There Was No Error in the District Court's
Instruction that U.S. Marshals Are Employees of
the United States

When instructing the jury on Counts 1 and 2A, which

alleged conspiracy to prevent federal officers from discharging

their duties, 18 U.S.C. § 372, and to impede them in the discharge

of those duties, id. §§ 371 and 111(a), the district court

explained "that employees of the United States Marshals Service are

in fact officers of the United States." Since both § 372 and

-43-
§ 111(a) refer to federal officers, we will assume this is an

element of the crimes.

The supposed error was that the jury was prevented from

finding an element of a crime and that under Apprendi v. New

Jersey, 530 U.S. 466 (2000), this purported error could not be

harmless. The argument is confused and wrong.

First, as a matter of law, it is true that employees of

the USMS are officers of the United States. See, e.g., 28 U.S.C.

§ 566. Defendants, indeed, did not say differently at trial or on

appeal. There can be no Apprendi error on a statement of law.

Second, perhaps defendants mean to argue there was a fact

question as to whether the people who defendants conspired "to

prevent" or "assault[], resist[], oppose[], impede[], intimidate[],

or interfere[] with" were federal officers. They made no such

objection at trial and cannot with a straight face make that

argument here.

Finally, defendants have misrepresented the law. Even if

there were a failure to submit an element of an offense to the

jury, that failure would be subject to the Neder harmless-error

rule. Neder v. United States, 527 U.S. 1, 19 (1999). Apprendi,

contrary to defendants' argument, does not alter the Neder rule.

The Supreme Court has, post-Apprendi, repeated that a trial court's

"failure to instruct a jury on all of the statutory elements of an

offense is subject to harmless-error analysis." Mitchell v.

-44-
Esparza, 540 U.S. 12, 16 (2003); see also Washington v. Recuenco,

548 U.S. 212, 222 (2006).

c. The District Court Correctly Instructed that the
Jury Could Find Just One Defendant Guilty of
Conspiracy

During its deliberations, the jury asked the court if it

had to find "either two or three of the defendants guilty [of

conspiracy] for any of the defendants to be guilty." (emphasis

added). The question had to do with the defendants, and not with

other persons. After discussing the question with all parties, the

court responded:

The answer to your question is no. You need not
find either two or three of the defendants guilty
for any of the defendants to be guilty. You
should still refer to the definition of a
conspiracy as set forth in the instructions.

The conspiracy instructions, in turn, had referred to an agreement

"between at least two people." Riley perfunctorily argues, as he

did before the district court, that the instruction "in effect

entirely negated the requirement that a conspiracy involve an

agreement between two or more defendants." We review his claim de

novo, United States v. Luisi, 482 F.3d 43, 51 (1st Cir. 2007), and

find it utterly without merit.

The court's answer to the query was accurate and

explicitly referred back to its instruction on conspiracy. When

multiple defendants are charged with conspiracy, a jury may convict

just one of them. United States v. Rogers, 121 F.3d 12, 16 (1st

-45-
Cir. 1997). Further, the indictment in this case alleged that

defendants had conspired with "other individuals." In light of the

evidence presented at trial, the jury could certainly have found

that a single defendant was guilty of conspiring with people other

than his co-defendants.

d. The Defendants Were Properly Convicted by General
Verdict on Count 2

Gerhard and Riley urge that the verdict form was

deficient for Count 2 because it did not allow the jury to specify

which object of the dual-object conspiracy charged in that count

was the basis for its verdict. Count 2 charged defendants with

conspiracy to interfere with federal officers in the discharge of

their duties, in violation of §§ 371 and 111(a) (Count 2A), as well

as conspiracy to be an accessory after the fact in violation of

§§ 371 and 3 (Count 2B).

Relying on challenges to the legality of Counts 2A and 2B

that we rejected above, defendants assert that the guilty verdict

on Count 2 must be vacated because the form's phrasing resulted in

uncertainty as to the particular object(s) of the conspiracy on

which the jury relied and one or both of them may have been legally

insufficient.12 The Supreme Court has held that a jury may render

12
The court instructed the jury that it could find
defendants guilty if the government carried its burden as to either
object of the conspiracy. The pertinent part of the instructions
stated that the jury could only render a guilty verdict if it found
that a defendant joined in an agreement "to either (A) assault,
resist, or impede officers of the United States in the discharge of

-46-
a general verdict on a multiobject conspiracy, provided (1) the

evidence is sufficient with respect to any one of the acts charged,

and (2) the jury could not have relied on a defective legal theory.

Griffin v. United States, 502 U.S. 46, 59-60 (1991); see also

Sochor v. Florida, 504 U.S. 527, 538 (1992); United States v.

Capozzi, 486 F.3d 711, 718 (1st Cir. 2007). Since defendants have

made no meritorious challenges to the legal or evidentiary

sufficiency of either Count 2A or Count 2B, their argument

necessarily fails. E.g., Griffin, 502 U.S. at 59-60.

e. The Jury Was Properly Instructed in the
Disjunctive on Count 2

Gonzalez makes a related claim, urging that Count 2 must

be vacated because the indictment charged defendants with violating

both Counts 2A and 2B and the jury was instructed that it could

find defendants guilty on the basis of either object of the

conspiracy. We review Gonzalez's preserved argument de novo,

United States v. González-Vélez, 466 F.3d 27, 34 (1st Cir. 2006),

and reject it.

We have routinely affirmed the use of the conjunctive in

indictments followed by the use of the disjunctive in jury

instructions. See Capozzi, 486 F.3d at 717 ("The indictment

their duties, or (B) receive, relieve comfort or assist Edward and
Elaine Brown in order to hinder and prevent their apprehension,
trial and punishment." The verdict form required the jury to
indicate whether it found each defendant guilty "of conspiracy to
hinder or prevent the U.S. Marshals in attempting to arrest Edward
and Elaine Brown." No party objected to the form of the verdict.

-47-
followed the usual practice of using the conjunction 'and' in

reference to the planned offenses, but guilt can be established by

adequate proof on any one of the . . . charged grounds.") (citing

Griffin, 502 U.S. at 59-60); see also United States v. Mitchell, 85

F.3d 800, 810-11 (1st Cir. 1996).

Gonzalez attempts to distinguish our precedents, which

address general verdicts, by urging that what the jury rendered was

a special verdict on Count 2. Not so. Neither defendants nor the

government requested a special verdict, and a straightforward

reading of the verdict form and jury instructions confirms that the

jury reached a general verdict.13 See United States v. Riccio, 529

F.3d 40, 47 (1st Cir. 2008); see also Black v. United States, 130

S. Ct. 2963, 2968-69 & n.11 (2010) (noting that the Federal Rules

of Criminal Procedure only provide for general verdicts and

cautioning against using special verdicts in most criminal trials).

5. Defendants' Convictions on Counts 2B and 3 Were Supported
by Sufficient Evidence

Gerhard and Gonzalez argue that the evidence was

insufficient to convict them on Count 2B, 18 U.S.C. §§ 371 and 3

(conspiracy to be an accessory after the fact), and Count 3, id.

§ 3 (being an accessory after the fact). Defendants argue that

because there was no evidence they were aware of the specific

13
For the same reason, we reject Gonzalez's related
challenge to his sentence, anchored in his erroneous assertion that
he was wrongly sentenced on both objects of the Count 2 conspiracy,
though the jury's "special verdict" only found him guilty of one.

-48-
elements of the crimes the Browns were convicted of committing, the

government could not satisfy the "knowledge" component of the

accessory statute. Our review is de novo. We have already

rejected the legal premise for the argument;14 in any event, the

evidence on this point was ample.

Both Gerhard and Gonzalez were aware the Browns had been

convicted of federal tax crimes and acted with that knowledge.

Evidence at trial included two newspaper articles, written by

Gerhard in February or March of 2007, in which he reported that the

Browns had been convicted in January 2007 of "conspiring to commit

tax fraud, conspiring to disguise large financial transactions and

disguising large financial transactions," and that Elaine Brown was

also convicted of "evading income taxes and failing to withhold

taxes from her employees." Gonzalez acknowledged discussing the

Browns' tax-related convictions with Edward and Elaine Brown

shortly after his April 2007 arrival in New Hampshire. That

suffices.

C. Arguments Related to Sentencing

Each defendant argues his sentence was too harsh and

based on error.

14
Once again, there is no need for us to address the
unrelated situation of a defendant charged with assisting an
offender before that offender's conviction. Cf. Graves, 143 F.3d
at 1190.

-49-
 Gerhard received an above-guidelines sentence of 240

months' imprisonment, consisting of 72 months on Count 1, 60 months

on Counts 2 and 3, to run concurrently with each other but

consecutively to Count 1; and 108 months on Count 4, to be served

consecutively to the terms imposed on the other counts. Gerhard's

guidelines sentencing range was 57 to 71 months' imprisonment.

Gonzalez received an above-guidelines sentence of 96

months' imprisonment, consisting of 60 months on Count 2 and 36

months on Count 3, to be served consecutively. Gonzalez's

guidelines sentencing range was 41 to 51 months' imprisonment.

Riley received a sentence of 432 months' imprisonment,

consisting of 72 months on Count 1, 25 months on Counts 2 and 3 to

run concurrently with each other and with Count 1, and 360 months

on Count 6 to be served consecutively to the terms imposed on

Counts 1 through 3. Riley's guidelines sentencing range was 78 to

97 months' imprisonment, and his conviction on Count 6 carried a

minimum sentence of 360 months, 18 U.S.C. § 924(c)(1)(B)(ii).

Defendants' sentencing claims fall into three groups: (1)

Gerhard and Riley's argument that the district court was unable to

calculate their accessory sentences on Count 3 because the

sentences for the crimes to which they were accessories were not

determined, (2) an unpreserved argument from all three defendants

that they were improperly sentenced on Count 2, and (3) additional

-50-
challenges by Gerhard and Gonzalez. Each of defendants' claims

fails.

"We review [preserved] claims of sentencing error in the

application of the guidelines on a sliding scale. Pure issues of

law, such as interpretations of the guidelines, are reviewed de

novo; findings of fact are reviewed for clear error; and there is

a continuum between those two poles." United States v. Stella, 591

F.3d 23, 27 (1st Cir. 2009); United States v. Sicher, 576 F.3d 64,

70-71 (1st Cir. 2009).

1. Gerhard and Riley Were Properly Sentenced as Accessories
after the Fact, 18 U.S.C. § 3

Accessories after the fact may receive sentences up to

"one-half the maximum term of imprisonment" to which the principals

were exposed. 18 U.S.C. § 3. In a variation on claims we have

rejected, Gerhard and Riley say, for the first time on appeal, that

absent a showing of the Browns' specific crimes of conviction, the

district court could not calculate their accessory sentences.

Defendants' argument relies on a faulty premise. Gerhard and

Riley's respective Pre-Sentence Reports ("PSR") did specify the

Browns' crimes of conviction and the district court could rely on

this information. See United States v. Olivero, 552 F.3d 34, 40

(1st Cir. 2009).

-51-
 Both PSRs reported the Browns' most serious conviction.15

It carried a maximum penalty of 120 months' imprisonment. 31

U.S.C. § 5324(d)(2). This meant Gerhard and Riley were subject to

up to 60 months' imprisonment on Count 3. Gerhard's 60-month

sentence and Riley's 25-month sentence on that count were proper.

The defendants cannot plausibly argue that the factual

basis for their sentences unduly surprised them at sentencing. See

Olivero, 552 F.3d at 40; see also Irizarry v. United States, 128 S.

Ct. 2198, 2203 (2008).

2. The Defendants Were Properly Sentenced on Count 2

All three defendants claim that the district court erred

by sentencing them to more than 12 months' imprisonment on Count 2.

They urge that without the specifics of the Browns' convictions, no

sentence could be calculated for Count 2B, eliminating that count

as a basis for their sentences. They say that the only remaining

count, Count 2A, was a "simple assault" misdemeanor, subject to a

maximum sentence of 12 months.16 See 18 U.S.C. § 111.

15
When more than one underlying offense is at issue, courts
should use the most serious offense to calculate a defendant's
guidelines range. U.S.S.G. § 1B1.5 comment. (n.3).
16
When calculating a defendant's guidelines range,
conviction of a conspiracy to commit more than one offense is
treated "as if the defendant had been convicted on a separate count
of conspiracy for each offense that the defendant conspired to
commit." U.S.S.G. § 1B1.2(d). As a result, the district court
considered Counts 2A and 2B separately.

-52-
 Defendants' argument is precluded by our determination

that the court could sentence them on Count 2B for conspiring to be

accessories after the fact. That alone defeats their claim. In

any event, the evidence does not at all support a conclusion that

only a simple misdemeanor assault was involved under Count 2A.

3. Gerhard and Gonzalez's Remaining Sentencing Claims Fail

a. The District Court Did Not Err by Applying
U.S.S.G. § 2J1.2 to Gerhard's Count 1 Conviction

Since the guidelines do not specify a base offense level

for violations of 18 U.S.C. § 372 (conspiracy to prevent an officer

from discharging his duties), the district court determined the

most analogous guideline. The court used U.S.S.G. § 2J1.2, the

obstruction-of-justice guideline, which has a base offense level of

14. Gerhard claims that the district court erred by not using

U.S.S.G. § 2A2.4, which governs convictions for obstructing or

impeding officers and has a base offense level of 10. We disagree.

Gerhard's argument relies in significant part on his

already rejected assertion that Count 1 involved the "same

substantive offense" as Count 2A, 18 U.S.C. §§ 371 and 111(a)

(conspiracy to interfere with an officer in the midst of

discharging his duties), to which the district court applied

U.S.S.G. § 2A2.4.

On the evidence before it, the district court found that

Gerhard conspired to thwart USMS efforts to arrest the Browns,

wanted after their convictions, and so obstructed the

-53-
administration of justice. No more was needed. Not all

conspiracies to prevent federal officers from discharging their

duties will involve obstruction of justice; this one did.

b. The District Court Did Not Abuse Its Discretion
by Running Gerhard's Sentence on Counts 2 and 3
Consecutive to His Sentence on Count 1

Gerhard perfunctorily argues that the district court

abused its discretion by imposing consecutive sentences on Count 1

and Counts 2 and 3 because the resulting sentence was too severe.

He does not argue there was any procedural error, and there was

none.

The district court used the sentencing factors in 18

U.S.C. § 3553(a) to frame Gerhard's sentence, citing, among other

facts, Gerhard's purchase of "extremely dangerous weapons" and

"bomb components" for the Browns, his willingness to use force to

protect them, and his evident "intent to continue his conduct and

endanger the community." Based on information in Gerhard's PSR, as

well as testimony at sentencing from a deputy U.S. Marshal and a

prisoner who had conversed with Gerhard after his arrest, the court

also noted that Gerhard had joined the U.S. Army "to learn more

about explosives" and hoped to emulate Oklahoma City bomber Timothy

McVeigh. The sentence received was well within the court's

discretion. See United States v. Ziskind, 471 F.3d 266, 268-69,

271 (1st Cir. 2006).

-54-
 c. Gerhard's Challenges to the District Court's
Guidelines Calculations as to Counts 2 and 3 Are,
at Most, Harmless Error

Gerhard raises four additional objections to the district

court's guidelines calculations as to Counts 2 and 3. We bypass

the merits of these arguments because neither of these counts had

any impact on Gerhard's guidelines range. See United States v.

Rivera, 448 F.3d 82, 86 n.1 (1st Cir. 2006); United States v.

Caldwell, 358 F.3d 138, 143 (1st Cir. 2004).

The district court grouped Counts 1, 2B, and 3 together.

The total offense level for that group, 25, was derived entirely

from Count 1, the most serious offense. See U.S.S.G. § 3D1.3(a).

Count 2A was grouped separately and assigned a total offense level

of 10. Because Count 2A's offense level was more than nine levels

less serious than the group with the highest offense level, the

district court disregarded it when calculating Gerhard's guidelines

range. See U.S.S.G. § 3D1.4(c). In short, only Counts 1 and 4

impacted Gerhard's guidelines range.17 Any guidelines error as to

Counts 2 and 3 was harmless. E.g., Rivera, 448 F.3d at 86 n.1.

17
Gerhard's guidelines sentence on Count 4, 18 U.S.C.
§ 924(c) (possession of a firearm in furtherance of a crime of
violence) was the mandatory-minimum sentence required by statute to
be imposed separately and consecutively to the other counts.
U.S.S.G. § 2K2.4(b). Gerhard does not object to the district
court's calculation for Count 4.

-55-
 d. The District Court Properly Imposed Obstruction-
of-Justice Enhancements to Gonzalez's Sentence

The district court imposed the obstruction-of-justice

enhancement, U.S.S.G. § 3C1.1, when calculating Gonzalez's

guidelines sentence. The court cited fourteen separate examples of

perjury by Gonzalez, which he does not contest on appeal, and,

further, an instance in which Gonzalez personally instructed the

jury that "Jury nullification is your right," which he does

contest. The district court found that these incidents,

individually and cumulatively, merited imposing the enhancement.

Gonzalez's argument about his jury nullification

statements is beside the point. Cf. United States v. Manning, 79

F.3d 212, 219 (1st Cir. 1996). The perjury findings were

independently sufficient to justify the enhancement. See, e.g.,

United States v. Shinderman, 515 F.3d 5, 19-20 (1st Cir. 2008);

United States v. Meada, 408 F.3d 14, 24-25 (1st Cir. 2005).

e. The District Court Did Not Err by Imposing a
Sentencing Enhancement for Gonzalez's Use of a
Dangerous Weapon under U.S.S.G. § 2A2.4(b)(1)(B)

Gonzalez claims that the district court erred by imposing

a three-level enhancement for use of a dangerous weapon, U.S.S.G.

§ 2A2.4(b)(1)(B). He argues that this conduct constituted a

distinct, charged offense, which the jury rejected when it hung on

the possession-in-furtherance count, 18 U.S.C. § 924(c), and that

sentencing may not be based on acquitted conduct. He is mistaken.

-56-
 "[A]cquitted conduct, if proved by a preponderance of the

evidence, . . . may form the basis for a sentencing enhancement."

United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); see also

id. at 313-14 (rejecting a defendant's challenge to a dangerous-

weapon enhancement imposed despite acquittal on a § 924(c) charge).

At trial, the evidence against Gonzalez included (1) video of him

carrying a rifle over his shoulder while walking behind Edward

Brown, (2) his testimony that he brought two guns with him to New

Hampshire and purchased an additional .50 caliber rifle that he

kept with him on the Browns' property, (3) his recorded statement

that he served as "volunteer security" for the Browns, and (4) his

declaration in an interview with a media correspondent that he and

other supporters of the Browns had "weapons and . . . [we]re going

to defend [them]selves." On these facts, the district court could

easily have found the enhancement was warranted.

f. Any Error in Calculating Gonzalez's Guidelines
Range on Counts 2B and 3 Was Harmless

The district court used U.S.S.G. § 2J1.2 (obstruction of

justice) as the base offense level for Gonzalez's convictions on

Counts 2B and 3. Gonzalez claims a lower offense level was

appropriate on both counts because he was not charged with

obstructing justice.

We need not resolve this purported guidelines issue, as

the errors, if any, would not have affected the district court's

sentence. United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009);

-57-
United States v. Teague, 469 F.3d 205, 209-10 (1st Cir. 2006).

After calculating Gonzalez's guidelines sentence, the district

court explicitly stated that it considered a longer, 96-month

sentence "sufficient, but not greater than necessary, to effectuate

the goals of 18 U.S.C. § 3553(a)," citing "the seriousness of the

offense, the need to promote respect for the law, the need for just

punishment and the need for general and specific deterrence, as

well as the need to protect the public from further crimes."

The district court noted, in particular, that Gonzalez

went to the Browns' "prepared to intimidate, prevent and, if

necessary, kill members of the [USMS] or other law enforcement

officers should they attempt to enforce a lawful order" and

acquired weapons capable of delivering on his threats. The court

observed that "[i]t was only because of the restraint of the [USMS]

that a significant number of individuals were not injured or

killed." It cited Gonzalez's defiant attitude during trial and

allocution and determined that "he remains a serious danger to the

community." Any error in the court's guidelines calculation would

not have affected Gonzalez's sentence.

III. Conclusion

This was a difficult case and the trial court handled it

well. Defendants' convictions and sentences are affirmed.

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