USA v. Reid

1Although Reid filed three motions under seal, he refers to
those motions in the fourth motion, which is not filed under
seal, and filed a supporting memorandum for all four motions,
which is also not filed under seal.
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-057-JD
Gordon Reid
O R D E R
Gordon Reid was indicted on one count of interference with
commerce by means of robbery in violation of 18 U.S.C. § 1951(a),
a Hobbs Act offense, after he allegedly robbed a Hess Gas Station
and Convenience Store in Concord, New Hampshire. Reid is
proceeding pro se, with appointed stand-by counsel. He has filed
four motions, three of them ex parte motions under seal, seeking
discovery related to his claim of selective prosecution.1 The
government has responded to the motion seeking discovery from it,
which is not ex parte or filed under seal.
Reid contends that the Office of the United States Attorney,
for the District of New Hampshire (“U.S. Attorney’s Office”) does
not prosecute white individuals under the Hobbs Act unless the
violation is within the heightened standard set in the United
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States Attorney Manual but does prosecute black individuals whose
violations do not meet the heightened standard. He seeks
discovery from the New Hampshire Public Defender, the Federal
Public Defender, and the New Hampshire Administrative Office of
the Courts of information about cases during the past ten years
in which the defendant was charged with robbery of a business and
violation of New Hampshire Revised Statutes Annotated § 636:1,
including the race or ethnicity of the defendant. Reid seeks
more wide-ranging discovery from the government, generally
pertaining to its prosecution of Hobbs Act violations. The
government objects to Reid’s motion for discovery. The other
entities have not responded because the motions pertaining to
them were filed ex parte.
“A selective-prosecution claim is not a defense on the
merits to the criminal charge itself, but an independent
assertion that the prosecutor has brought the charge for reasons
forbidden by the Constitution.” United States v. Armstrong, 517
U.S. 456, 463 (1996). To succeed on such a claim, Reid would
have to show that he “was prosecuted while others similarly
situated were not” and that the prosecutorial decision was based
on an impermissible consideration such as race. United States v.
Peterson, 233 F.3d 101, 105 (1st Cir. 2000); see also Armstrong,
517 U.S. at 464-68. Because the government has broad discretion
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in making the decision to prosecute, a presumption of regularity
protects those decisions. Id. at 464. To obtain discovery on a
selective-prosecution claim, a defendant must present “some
evidence tending to show the existence of the essential elements”
of the claim, that is, evidence of a “discriminatory effect and
discriminatory intent.” Id. at 468; see also United States v.
Magana, 127 F.3d 1, 8 (1st Cir. 1997). That standard requires
“the defendant to produce some evidence that similarly situated
defendants of other races could have been prosecuted, but were
not,” meaning “a credible showing of different treatment of
similarly situated persons.” Id. at 469 & 470.
In support of his discovery requests, Reid begins by quoting
from the United States Attorneys Manual, policy 9-131.030, that
advises use of the Hobbs Act robbery offense under § 1951 “only
in instances involving organized crime, gang activity, or wide-
ranging schemes.” He contends that the U.S. Attorney’s Office
adheres to that policy only with respect to white defendants but
not as to black defendants, such as himself. He states that he
has found that reported and pending federal cases in New
Hampshire, involving white defendants charged under the Hobbs
Act, comply with the Manual policy, because the defendants were
all involved in wide-ranging schemes. In contrast, he points to
his own case and one other where black defendants were charged
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2Reid contends that this practice is either because the
state does not refer white defendants to federal prosecutors or
because federal prosecutors decline to prosecute white defendants
who are referred from the state.
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with Hobbs Act crimes based on a single robbery, contrary to the
Manual policy. He also reports that the LexisNexis data base
shows “a plethora” of white defendants who could have been
prosecuted under the Hobbs Act for single robberies but instead
were prosecuted in the state system. He points out that the U.S.
Attorney’s Office did not prosecute Debra Poirer, who is white
and who was arrested at the time of his arrest and charged with
conspiracy to commit robbery, while they did prosecute him.2
Reid further contends that the government “solicits proffers
and like agreements” from white defendants in order to obtain
evidence against their black co-defendants, who are not offered
deals. In support of his theory, he provides the affidavits of
Matthias Morgan and Charles Glen who are both black. They
recount their experiences in which a white co-defendant gave
evidence against them, although the government did not offer them
the same opportunity to provide evidence in exchange for
leniency. Reid states in his affidavit that he was not offered
any kind of a deal in exchange for evidence that he might
provide.
The government responds, supported by the affidavit of the
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3The government also notes that the Manual provides no
substantive rights for criminal defendants. Here, however, the
Manual is cited only for the purpose of showing the government’s
selective adherence to the policy on Hobbs Act crimes as part of
Reid’s claim of a discriminatory intent.
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Chief of the Criminal Division of the U.S. Attorney’s Office,
that the office does not make prosecutorial decisions based upon
the race of the accused and did not do so in Reid’s case. The
government states that while the policy stated in the Manual is
one consideration in the prosecution decision, there are others,
including the defendant’s criminal history and whether a firearm
was used or threatened in the commission of the robbery.3 In
particular, under a Department of Justice program titled “Project
Safe Neighborhood,” the U.S. Attorney’s Office prosecutes crimes
in which a firearm was used or threatened. The government points
out that Reid has an extensive criminal history and was on parole
at the time of his arrest and that he threatened to use a firearm
as part of the robbery. Those are the factors, according to the
government, that led to Reid’s prosecution on the Hobbs Act
charge.
In contrast, Poirier was sitting in her car during the
robbery attempt and initially denied any knowledge of Reid’s plan
to rob the store. The state dropped the charges against her due
to a lack of evidence. Later, however, Poirier admitted knowing
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of Reid’s intent and agreed to provide evidence against him.
Poirier has also been indicted by a federal grand jury for
distributing crack cocaine and will be tried on those charges in
February of 2006.
In his affidavit, the Chief of the Criminal Division also
provided a list of twenty-five cases in which defendants were
charged under the Hobbs Act during the past five years. For each
case, the race of the defendant is included in parentheses based
on the recollections of the Assistant United States Attorneys who
handled the cases. Those cases involve sixteen defendants listed
as Caucasians, one Asian, seven African-Americans, and one
Hispanic. A quick check of this court’s dockets for the cited
cases shows that several of the white defendants were prosecuted
for single robbery Hobbs Act violations that are remarkably
similar to the crime with which Reid is charged.
Reid’s argument that the government selectively prosecuted
him under the Hobbs Act, based on his race, is not supported by
credible evidence of discrimination. There is even less support
for his claim that the government selectively offers plea deals
based on race. Therefore, additional discovery on Reid’s
selective prosecution claim is not warranted.
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Conclusion
For the foregoing reasons, the defendant’s motions for
discovery and for subpoena duces tecum (documents no. 50, 51, 52,
53, 57, 58, and 59) are denied.
SO ORDERED.
Joseph A. DiClerico, Jr.
United States District Judge
January 13, 2006
cc: Gordon Reid, pro se
Helen W. Fitzgibbon, Esquire
Michael J. Iacopino, Esquire
U.S. Probation
U.S. Marshal
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