USA v. Reid

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-057-JD
Gordon Reid
SEALED ORDER
Gordon Reid moves ex parte and under seal seeking two
subpoenas duces tecum pursuant to Federal Rule of Criminal
Procedure 17(c). Specifically, Reid wants to subpoena insurance
records related to the robbery of the Hess Express store on
February 13, 2005, and records from John’s Wrecker Service
pertaining to towing or moving a Chevrolet Geo Metro from the
parking lot behind the Merrimack County Superior Court.
“A subpoena may order the witness to produce any books,
papers, documents, data, or other objects the subpoena
designates.” Fed. R. Crim. P. 17(c). Rule 17(c) does not
provide a means for discovery in criminal cases. Cheney v. U.S.
Dist. Court for Dist. of Columbia, 542 U.S. 367, 386 (2004). To
obtain a subpoena for the materials Reid seeks before trial, he
must show:
(1) that the documents are evidentiary and relevant;
(2) that they are not otherwise procurable reasonably
in advance of trial by exercise of due diligence; (3)
that the party cannot properly prepare for trial
without such production and inspection in advance of
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trial and that the failure to obtain such inspection
may tend unreasonably to delay the trial; and (4) that
the application is made in good faith and is not
intended as a general “fishing expedition.”
United States v. Nixon, 418 U.S. 683, 698-700 (1974).
I. Motion for Records from John’s Wrecker Service
Reid seeks records from John’s Wrecker Service pertaining to
towing or moving the Chevrolet Geo Metro, that he allegedly drove
from Manchester to Concord, from the parking lot behind the
Merrimack County Superior Court. Reid notes that there was snow
on the ground on February 13, 2005, when the robbery occurred,
but that some of the government’s photographs of the car do not
show snow. He contends that the records from the wrecker service
are relevant to his theory that the government staged some of the
pictures of the car because of the lack of snow in some of the
pictures.
Although the records Reid seeks may be only tangentially
relevant to impeach the government’s proof, his request is
granted.
II. Motion for Insurance Records
Reid seeks records from Hess Express related to any
insurance claim made for its loss caused by the robbery on
February 13, 2005. He contends that because the testimony during
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his first trial was not consistent as to the amount of money that
was stolen in the robbery, the insurance records are necessary to
establish that amount for purposes of showing that the effect of
the robbery on interstate commerce was de minimis and that the
money found near him at the time of his arrest was not the money
that was stolen from the station.
A. Affecting Interstate Commerce
The Hobbs Act makes a robbery that “in any way or degree
obstructs, delays, or affects [interstate] commerce” a federal
offense. 18 U.S.C. § 1951(a)(1); United States v. Jimenez-
Torres, 435 F.3d 3, 7 (1st Cir. 2006). Even a de minimis effect
on interstate commerce satisfies that element of a Hobbs Act
offense. Id. Robberies involving small amounts of money taken
from businesses engaged in interstate commerce affect interstate
commerce for purposes of the Hobbs Act. See United States v.
Curtis, 344 F.3d 1057, 1069-70 (10th Cir. 2003). In addition, a
robbery that causes a temporary closure of a business engaged in
interstate commerce affects interstate commerce for purposes of
the Hobbs Act. United States v. Vega Molina, 407 F.3d 511, 527
(1st Cir. 2005); accord Jiminez-Torres, 435 F.3d at 8.
Reid does not dispute that Hess Express is engaged in
interstate commerce. Witnesses testified at Reid’s first trial
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that money and a six pack of beer were stolen from the Hess
Express store and that the store was closed after the robbery,
during the police investigation. Evidence that money was stolen
from the store and that the robbery caused its temporary closure
would satisfy the interstate commerce element of the Hobbs Act,
without requiring proof of the exact amount of money taken in the
robbery. Therefore, because evidence of the amount of money
stolen is not material in this case, Reid has not shown that the
insurance records he seeks are relevant to the interstate
commerce element of the Hobbs Act.
B. Money from Robbery
Reid contends that the $240 in cash that was recovered from
the area near him when he was arrested was his money and was not
money taken in the robbery. In support of his motion, Reid
states that witnesses testified at his first trial that different
amounts were taken during the robbery, ranging from $160 to $290.
He seeks insurance records pertaining to the robbery to “firmly
establish” the amount that Hess Express claimed was stolen in the
robbery. A subpoena will be issued to Hess Express for copies of
its insurance records arising from the robbery on the night of
February 13, 2005.
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Conclusion
For the foregoing reasons, the defendant’s ex parte motion
for issuance of a subpoena duces tecum to John’s Wrecker Service
(document no. 301) and his ex parte motion for issuance of a
subpoena duces tecum to Hess Express (document no. 300) are
granted. The documents or materials designated in the subpoenas
shall be produced, under seal, to the clerk of court. When the
items arrive, the court will permit Reid to inspect them.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 9, 2006
cc: Gordon Reid, pro se
Michael J. Iacopino, Esquire
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