he federal district court is running out of judges to oversee the trials of four men accused of helping Plainfield tax protesters Ed and Elaine Brown escape capture. A second federal judge opted to bow out of the cases Friday, citing his close friendship with Judge Steven McAuliffe, who had already recused himself from two of the cases.
McAuliffe, who presided over the Browns' trials for tax-related crimes in January, became the subject of repeated death threats from the Browns and their allies after their convictions in January. McAuliffe went on to preside over the Browns' sentencing hearing in April, but he quickly recused himself when the cases of two supporters were assigned to him in September.
Those cases were passed on to Judge Paul Barbadoro, who had already been assigned two related cases. In Friday's order, Barbadoro recused himself from all four, writing that if he managed the cases, some might be concerned that he could be influenced by his friend's treatment.
"Judge McAuliffe and I have been friends for more than 20 years," the order says. "Although I am confident that I could preside impartially over the above-referenced cases notwithstanding this friendship, it is likely that at least some reasonable observers would conclude that my impartiality was compromised by my friendship with someone who allegedly has been threatened by the defendants' alleged co-conspirators."
The four men are accused of helping the Browns sustain an eight-month standoff with federal marshals. The standoff ended Oct. 4 when a team of marshals disguised as supporters arrested the Browns at their home without incident. According to indictments and other court documents, the four men, Jason Gerhard, Cirino Gonzalez, Daniel Riley and Robert Wolffe, are accused of bringing the couple food and supplies used to build traps. Three of the men are also accused of conspiring to impede the marshals and bringing weapons to help defend the Browns. Gerhard, the defendant who faces the most charges, would be sentenced to more than 125 years in prison if he is convicted.
All four supporters are scheduled for trials beginning Nov. 6. So far, none has made motions to postpone his trial.
Ed and Elaine Brown are serving 63-month prison terms for a series of tax related crimes. They were convicted of conspiring to evade taxes on nearly $2 million that Elaine Brown earned as a dentist and of conspiring to hide large financial transactions from federal officials. Elaine Brown was also convicted of multiple counts of tax evasion and failing to withhold employment taxes from workers at her office.
During their prolonged standoff, they attracted a number of supporters who brought them weapons, supplies and means of communication long after marshals cut off their phone line. The four men facing charges in New Hampshire were among the most prominent of those helpers.
U.S. Marshal Stephen Monier has indicated that the Browns may face new charges for their behavior since their convictions and said that additional supporters may face charges for helping the couple.
Neither the Browns nor their supporters have been charged with making threats against McAuliffe, but Ed Brown and members of his entourage have made repeated public calls for retribution against the judge for his involvement in the couple's tax case. Brown and several supporters have said that McAuliffe committed "treason" by preventing the couple from receiving a fair trial and should be punished by death.
"Here are the reasons why I am going to see federal district court judge Steven McAuliffe (husband of astronaut Christa McAuliffe), hanged for treason against our Constitution, and hence, the People," read an email sent by Bill Miller, a friend of Ed Brown's, in January. Miller later said he was not calling for the hanging of the judge.
Ed Brown himself suggested that McAuliffe and his family should be targets because of the judge's management of the trial. Brown has argued that McAuliffe is part of the "Zionist Illuminati," an international cabal that wants to run the world.
"This is a warning," Brown said in a February radio broadcast, mentioning McAuliffe by name as a member of the group. "Once this thing starts, we're going to seek them out and hunt them down. And we're going to bring them to justice. So anybody wishes to join them, you go right ahead and join them. But I promise you, long after I'm gone, they're going to seek out every one of you and your bloodline."
In the weeks before his arrest, Ed Brown spoke frequently on the radio about a hit list with more than 50 names that had been distributed to supporters in case of his death or capture. On the day of his arrest, Brown also applauded a proposal to assign secret assassination squads to target key government officials. Brown did not mention names, but he did agree with an admiring portrayal of Bart Ross, who shot family members of an Illinois federal judge in 2005 after she entered a medical malpractice ruling against him.
In his order, Barbadoro indicated that he would not have recused himself if threats had been made against McAuliffe during the course of the supporters' cases.
"A defendant cannot force a judge to disqualify himself in a previously assigned case by making threats against the judge or his friends," he wrote. "However, the threats at issue here allegedly were made before the cases were assigned to me and I have no basis to believe that the alleged threats were made to provoke my disqualification."
Judge Joseph DiClerico Jr. is the only federal judge at the New Hampshire District Court who has not disqualified himself from the Brown-related cases. As of yesterday, the cases had not been reassigned.