Saturday, March 29, 2008
The day started with a fresh blanket of pure, white, beautiful New Hampshire snow. About 2 to 4 inches of snow had fallen during the night and was continuing to fall. A quick check of the court’s web site confirmed that the trial was still on for the day. The Judge then noted when the Jury entered the court room that “New Hampshire folks are very hardy”. As a native upstate New Yorker I would have to concur, a little snow doesn’t stop much activity, if any. The majestic beauty and splendor of this small slice of creation that is New Hampshire and Vermont was so graciously laid out before me as I drove back to Albany over the higher elevations between Concord, Keene and Bennington. The fresh white snow, clinging to the trees of the wide vistas of rugged landscape, produced in me feelings of awe and humility as I retraced in my mind the week’s events at trial as the prosecution’s case marched on towards its eventual close.
Cross examination of ATF EOD expert, Mr. Erickson, recommenced. The Defense played the Tannerite promotional DVD that was found with the box at the Brown’s. The video displayed a demonstration of mixing a single 1 lb. Tannerite target. The video also displayed the uniquely robust stability aspects of the substance. A mixed target of Tannerite had a lit fuse pass completely through it with no effect. A propane blow torch was used to melt and burn a fully mixed target again with no effect. Next the video moved to the shooting range demos with the music of Pat Benatar’s “Hit Me with Your Best Shot” cranking on the court room speakers. The demo showed failed attempts at getting targets to detonate with smaller caliber weapons including hitting targets with fully automatic burst of tracer rounds from 5.56 caliber weapons and then actual detonations of targets with a high powered rifle as shown in the video in my previous post. Mr. Erickson played up the effects of the detonation, he noted that flying debris and heat and pressure effects would damage hearing, internal organs and could potentially be lethal. On recross Mr. Erickson conceded that Tannerite is perfectly legal and noted that the Brown’s had a shooting range on the property and that he did not search for any Tannerite targets or residue on that shooting range. It was also noted that none of the “zip guns” were found actually deployed in the woods, all of them were located still in boxes and baskets in the house. One thing that struck me about Mr. Erickson’s testimony over these last several days is that he is a cold testifying machine, a professional government witness and employee, well practiced on the witness stand, with no hesitation, robotically reciting “destructive device”, “bomb” and “firearm”, like a seasoned actor reciting William Shakespeare.
The next witness was Alfred Lindquist and employee of the Alstead gun shop. Several ATF 4473 forms were introduced into evidence, Jason Gerhard was the purchaser on all the forms. One from 7/20/07 showed the purchased a Ruger 77 223 and a Ruger 308. He attempted to pay with American Express but it was reject because the shop didn’t accept it. Another from 7/31/07 showed the purchased a Ruger 22 caliber rifle. Another from 7/25/07 showed the purchase of a Serbu BMG 50 caliber rifle. On cross examination it was noted that the 223 and the Serbu had no iron sights or a scope and that all guns purchased were perfectly legal. It was also noted that secondary sales of guns are legal and that no records are kept when such sales are made.
The next witness was John Dibernardo also of the Alstead gun shop. More ATF 4473 forms were introduced, all for Jason Gerhard. One form from 1/21/07 for a Bushmaster carbon 15 223 caliber and another form from 4/2/07 for a M44 7.62 bolt action rifle. On cross it was noted that all purchases were perfectly legal.
The next witness was Richard Taylor, the sole proprietor of the Stone Eagle gun shop in Newport, NH. The prosecution introduce into evidence an ATF 4473 form showing Daniel Riley purchased a Serbu BMG 50 caliber rifle on 5/23/2007 and it was delivered on 6/5/2007. The sales receipt was introduced that showed it was paid for with cash. It was noted that the BMG 50 caliber rifle found at the Brown’s had its serial number obliterated. The witness noted that Reno arrived at the store a short time after Danny on 5/23/2007. Another ATF 4473 form was introduced showing Cireno Gonzales purchased a Serbu BFG 50 caliber rifle on 5/23/2007 and it was delivered on 6/1/2007 and he paid by check.
The next witness was Daniel Tanner, owner of the Tannerite Company. He viewed the pictures of the Tannerite nailed to the trees and the carriage house at the Browns and stated that the detonation would “destroy the tree” and if you were standing close it would “at a minimum damage your hearing”. His sales records were entered into evidence that showed that Daniel Riley had purchased 5 cases of twenty 1/2lb targets in late May 2007. He noted that Riley called him a few days later requesting a tracking number for the shipment and he mentioned that he was staying at the Brown’s house in New Hampshire and he actually put Ed Brown on the phone to speak with Tanner. An email sent from Riley to Tanner on 6/7 was introduced into evidence. The email requested that Tanner abort the shipment of Tannerite because the Marshals had shot at, tasered and interrogated Riley that day. The Marshals had told Riley to cancel the shipment of Tannerite. On cross examination Tanner conceded that “many variables” were involved that would effect how much damage a Tannerite target would do to a tree, including if it was alive or dead, if it was soft or hard wood and the size of the tree. He also noted that no warning label was given about hanging the product in trees or buildings. He also stated that he was aware of the principle behind the Brown’s stand, he understood that they had asked the federal government to “show the law” requiring them to pay income taxes and that “there is now law” making them liable for the income tax and that the had the money and would gladly pay if they were shown the law. He also noted that the targets were mainly used to create a Hollywood flash bang type effect and that the plastic container would most likely vaporize and produce no fragmentation on detonation. He also mentioned that he was put on a distribution list and would receive emails from Riley with links to articles regarding the Brown’s situation.
The next witness was Michael Powell, an ATF firearms expert. His experience was with homemade firearms. He stated that he was able to test fire all of the zip guns found at the Brown’s. He stated that the spring was destroyed by the detonation of the shotgun shell. He explained how the device was constructed and how it was loaded with a shotgun shell. In his opinion the devices were fire arms. On cross examination it was noted that assembling and loading the devices required extensive handling and that the devices could be loaded with a blank shell to effectively become a noise maker. Also the devices would only work once because the spring would be destroyed by the shot.
End of day 5.
Thursday, March 27, 2008
The day commenced with more testimony of the ATF firearm tool marking expert. Before the witness could begin testimony the prosecution again conducted what amounted to a highly inflammatory Gun Show in front of the jury box. One of the four 50cal weapons found had its serial number removed and only the first 2 digits of the 4 digit serial number were recovered by the ATF lab. All the firearms were determined to be functional as designed by the manufacturer. The prosecution asked about several types of 50cal ammunition that was found at the Brown's, including some incendiary tracer type rounds. On cross examination, the expert was asked if any of the weapons showed signs of being fired before he conducted his test on the guns, he was not able to determine that. Also the witness noted that all of the 50cals were bolt action, single shot weapons with a slow rate of fire. The expert could not make a determination as to where and when the serial numbers were obliterated.
The next witness was Gene Robinson Jr., a Marshal on the arrest team for Reno. He testified as to the weapons that were found in the mobile home where Reno lived, including a 50cal, several assault rifles and a loaded pistol in the bedroom where Reno was taken into custody. It was noted that most of the weapons found belonged to Reno’s brother or the Freemont, TX police department. The weapons that didn’t belong to Reno were returned to their owners. Ammunition was also found throughout the mobile home.
The prosecution then called Joel Edgington, a seller of magnesium ribbon on eBay. Mr. Edgington testified that he sold magnesium ribbon to Jason Gerhard. The prosecution entered into evidence the actual magnesium ribbon that was recovered at the Brown’s still in its original seal shipping envelope. Mr. Edgington opened the envelope and removed 5 small rolls of magnesium ribbon. Edgington testified that he advertised the material as a way to ignite thermite in industrial applications. He originally purchased the material in bulk thinking that it could be resold on eBay as an emergency camp fire starting tool for survival applications. He did not know why Jason had purchased the material.
Next the prosecution called Randy Shepard, the records clerk at the West Lebanon, NH Home Depot store. The purchase records and receipts of an American Express card was entered into evidence. The records showed the purchase of pipe caps, pipe nipples, flower pots, flood lights, motion detector, a ground clamp, splicer, wire shelving and a file over a period of time in May 2007. The receipts of these purchases where put up on the screen showing the timestamp of the purchase, the last four digits of the credit card number, the items and the signature of the purchaser. One signature had the letters F.U. and another had FUCK U. on it. The witness COULD NOT identify who actually made the purchases. One receipt showed that the flood lights had been RETURNED for a full refund.
Next the prosecution called Shane MacDonald who had a real estate office in Lebanon, NH. He had called Elaine Brown to discuss leasing the commercial property in West Lebanon in May 2007. The witness described several meetings with Reno in which Reno met him at the commercial property and let him in to walk around and scope out the office space. He also described a 1 hr meeting that took place at the Brown’s house in Plainfield in which the lease terms were discussed. He described how he was able to drive up to the Brown’s house without a problem. There were no guards posted or other impediments to getting to the house. He met Ed in the driveway and noted that Ed had a side arm tucked into his belt. He went into the house through the foyer and into dinning room. He noted that Reno was off in the kitchen and he could see that he had a shoulder holster on. He said the negotiations were a bit unusual in that when Ed sat down at the table, he put his side arm on the table, the jury got a bit of a laugh out of that. He never went through with the lease because the property was seized by the government on 6/7/2007.
Next the prosecution recalled the ATF EOD expert, Kent Erickson. More pipe bombs were introduced into evidence. Several pictures of a pipe bomb that was detonated by the EOD team were entered into evidence. His opinion was that the pipe bombs were destructive devices. Several shipping boxes with unmixed Tannerite found at the Brown’s with the address label of Daniel Riley were entered into evidence. Next, photos of plastic zip lock bags with 1/2 lb plastic jars of Tannerite nailed to trees at about 8ft high at various locations around the circular driveway were entered into evidence. A photo of a zip lock bag with a small Coleman lantern propane tank in it, nail to a tree at the Brown's was also entered. On cross examination it was determined that the ATF expert could not determine when the plastic bags were nailed to the trees. More photos of the bulk un-opened ammunition supplies that the browns had stockpiled were also discussed
Some background on Tannerite:
The jars were similar to these 1 lb jars of Tannerite:
Here is the manufacturer’s example of the type of explosion that a 1 lb plastic jar of Tannerite would make:
Here is another video from youtube showing what small amounts of Tannerite can do:
These are hardly the big bad “lethal bombs” that the government would like to make the jury believe they were. Everyone likes to type the word “Tannerite” into Google and immediately view the videos where they are blowing up 10, 20, 30 lbs of Tannerite at a time. That is not what we saw today, we saw single 1/2 lb plastic jars of Tannerite in zip lock bags nailed to trees along the tree line and the corner of the carriage house all at about 8 ft up with the fluorescent orange sticker on the jars clearly visible. All the Tannerite was within line of site from the front porch of the Brown’s house. This would be more like an M80 or a 1/4 stick that you would see on the 4th of July.
End of day 4.
Wednesday, March 26, 2008
The day started with continuation of the ATF EOD expert testimony. Several more improvised fragmentation grenades were introduced into evidence. The expert determined that all of the small cans of black powder with fuses inserted into the lids were classified as destructive devices. Cans that didn’t have fuses were not classified as destructive devices. The expert also explained and showed on a plan view of the property were his team setup bomb disassembly stations and explained how the destructive devices were disassembled.
In an unusual deviation from normal trial procedure, the judge allowed the defense to call a witness “out of order” because the witness was going on vacation next week and would not be available. The judge instructed the jury as to what was going on and allowed the defense witness to be call to the stand. The defense witness was the technical leader of the ATF DNA LAB who performed and oversaw the DNA sample collection and testing for the evidence sent to his lab from the Brown's. The expert explained how simply touching items will leave small remnants of DNA on the item that could then be collected months later and tested. He explained how DNA profiling is extremely reliable at including a person or excluding a person as a contributor of the DNA material that was collected and tested. The expert was given all the pipe bombs, improvised fragmentation grenades and firearms that were at the Browns house, over 100 items in total. DNA samples were obtained from 20 out of the 100 items. The lab collected the samples by swabbing various points on the items (e.g. the end caps of pipe bombs, the lids of black powder cans, the trigger area of a firearm, the eye piece of a rifle scope etc.). His reports from this testing conclusively EXCLUDED all the defendants. NO MATCHING DNA WAS FOUND. On cross examination it was also reveal that law enforcement DNA was detected on some of the items indicating the some evidence contamination had occurred.
Several witnesses were called from the various stores where weapons were allegedly purchased. Each witness was used to establish foundation so ATF 4473 (gov’t background check) forms from each of the purchases could be entered into evidence. The first ATF 4473 form was for a purchase of a 12 gauge shotgun made at a Sports Authority store on Long Island in the name of Jason L. Gerhard. This form showed that Jason passed the background check and legally obtained this firearm. Another store clerk witness from a Wal-Mart in Middle Island, NY talked about an ATF 4473 form of the purchase of another 12 gauge shotgun made by a person named Justin Martin Gerhard. This form showed that the person passed the background check and legally obtained the weapon. On cross examination of this witness, the defense produced the NY State driving record of one Justin Martin Gerhard with the same birth date as Jason L. Gerhard. This made it look like a case of mistaken identity and cast doubt on the relevance of that form. A third witness was used to introduce an ATF 4473 form from the purchase of a FEG KBI weapon at a store in Maryland back in 1998 by Daniel J. Riley. This form showed that the background check was passed and the weapon was legally purchased.
The prosecution then wheeled in a cart with several of the weapons collected at the Brown’s, including two 50 cal firearms, several shotguns and smaller caliber weapons. The ATF field tech that oversaw the weapons collection at the site was called to the stand. The prosecution then brandished the weapons in front of the jury, one at a time, in a highly inflammatory way and had the ATF witness match photos taken at the scene with each weapon. On cross examination it was noted that one of the 50 caliber rifles was found with no scope and no iron sights on the weapon, rendering it useless for any kind of effective target shooting.
Another ATF witness was called who was an expert in firearms and tool markings from the ATF lab outside of Washington DC. It was noted that the serial number on the FEG weapon found at the Brown’s had been removed. The ATF lab was able to fully restore the serial number for this weapon through various lab techniques. The witness explained the nature of serial numbers and the various lab techniques used to restore an obliterated serial number.
End of day 3.
Tuesday, March 25, 2008
The defense teams cross examined the Marshal’s IT expert regarding the emails that were exchanged between Danny and Reno. Reno’s lawyer basically got the IT expert to concede that most of the emails were one-way traffic from Danny to Reno with little or no reply traffic from Reno. Also he noted that several of the emails from Danny were to a large distribution group, one of which highlighted the fact that the Ed and Elaine story had made the front page of the LA Times, with a link to the article.
Next the prosecution introduced the video from the camera that was set up at the end of the driveway and recorded the shots that were fired at Danny on 6/7/2007. The initial playback of the video was problematic because it skipped the crucial middle video file in the sequence of 3 files. It just played the first file and skipped to the third file. The 2nd video file was played moments later and it clearly showed that of all the weapons in this whole ordeal, the only ones fired in anger were those of the government. This video clearly backs up Danny’s affidavit from that day. Now that this video is in the public domain, it should appear shortly on youtube.
The prosecution then played the Audio recording from WTP radio of the red alert incident when shots were fired in the woods during the night. Danny called the radio station and spoke with Torrin Wolf and Jack Blood. The jury got to hear this audio segment in its entirety. I thought this audio did a great job of clearly highlighting that the supporters of the browns were clearly in a defensive posture with orders to not fire unless fired upon.
The prosecution then called up the pilot of the helicopter that flew in the area of the browns property on 6/7/2007. He established foundation for a short video segment from the helicopter's gyro stabilized, high powered video camera that merely showed Ed moving the lawn mower around and repositioning the pickup truck in the garage with Reno acting as armed security.
The prosecution then showed a video of a walk through of the Browns house shortly after their arrest that showed weapons, including 50 cal rifles, positioned at the ready at strategic points throughout the house. It also showed improvised black powder nail grenades stored at various locations in the house. It also showed improvised zip guns in various stages of construction in the garage workshop area. The video also showed unmixed tannerite stored in the house. The video also highlighted the survival rations and auxiliary power setup that the browns had. It also showed Elaine’s dental setup and a hyperbaric chamber that were in the house.
The prosecution then called the lead ATF EOD expert who was on scene to dispose of the weaponry to introduce all the improvised black powder nail grenades into evidence. The ATF EOD expert also explained what tannerite was and that it was not explosive until mixed and that it was used on shooting ranges to create small explosive targets to facilitate long range target practice.
End of day 2.
Monday, March 24, 2008
The Government presented a trial brief regarding email evidence
The Defense presented a very compelling motion to suppress evidence from Danny's 6/7/2007 unlawful arrest.
Saturday, March 22, 2008
On the Habeas Corpus front, the Federal Government was allowed to intervene and the petition was removed from the Hew Hampshire Supreme Court to the Federal District Court. A ruling on a motion for the NH Supreme Court to reconsider enbanc is pending.
Jury selection for the trial happened Thursday and the trial is set to start Monday 3/24 in Concord.