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
O R D E R
Gordon Reid is charged with 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. He moves to
suppress the pretrial identifications and anticipated in-court
identifications of him by two witnesses, asserting that the
pretrial identifications were impermissibly suggestive, which
also would give rise to a substantial likelihood of
misidentification in court. The government objects to both
motions. Reid’s motion for a hearing was granted, and a hearing
on the motions was held on February 8, 2006.
Discussion
“[A] court is to withhold identification evidence from the
jury only in extraordinary circumstances.” United States v.
Lebron-Cepeda, 324 F.3d 52, 58 (1st Cir. 2003). When a defendant
challenges the admissibility of identification evidence, the
court uses a two-part analysis to determine whether the evidence
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 1 of 8

2
must be suppressed. United States v. Lopez-Lopez, 282 F.3d 1, 10
(1st Cir. 2002). First, the defendant must show that the
identification procedure was impermissibly suggestive. United
States v. Gray, 958 F.2d 9, 14 (1st Cir. 1992); see also United
States v. Sullivan, 431 F.3d 976, 985 (6th Cir. 2005). If he
satisfies that burden, the court then considers whether in light
of the totality of the circumstances the identifications were
nevertheless reliable. Lopez-Lopez, 282 F.3d at 10-11. The same
test applies to in-court identifications, that is, “in-court
identification testimony is admissible unless its basis, the
pretrial identification, has proven so impermissibly suggestive
as to give rise to a very substantial likelihood of
misidentification.” United States v. Maguire, 918 F.2d 254, 264
(1st Cir. 1990).
The following is a summary of the hearing testimony about
the circumstances pertinent to the identifications of Reid as the
person who robbed the Hess Gas Station and Convenience Store
during the evening of February 13, 2005. That night Renee King
was working alone as the clerk of the store. It was her fourth
day of work at the station and the first time she had worked
alone. David Broadbent and his teenage son were returning from
the son’s hockey game in Massachusetts and stopped at the Hess
station to fill up the car. Broadbent customarily buys gas for
his cars and his business vehicles at the Hess station so that he
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 2 of 8

3
is there several times each week.
A customer entered the convenience store and walked back to
the coolers. He brought a six-pack of Budweiser beer to the
counter. Broadbent came into the store to prepay for gasoline.
The other customer waved Broadbent ahead to pay for his gas.
Their eyes met during that interaction, and Broadbent remembered
the customer as a black male, wearing a black leather jacket, and
a black knit cap. He also noticed that the customer had bulgy
eyes. Broadbent put his $40.00 on the counter to prepay for gas
and went out to pump the gas.
Once Broadbent was outside, the customer told King to give
him the money in the cash register. She had difficulty opening
the register because the gas transaction was entered into the
register and because she was not adept at operating it. The
customer told her to hurry up, opened his jacket showing what
appeared to be a gun, warned her to keep her hands where he could
see them, and told her to hurry or it would be her life.
Broadbent then came back and told King from the door that the
pump was not working. She apologized, and he went back to try
again. Broadbent could see King talking with the customer while
he waited for the pump to operate. Eventually King got the cash
drawer open and gave the customer the cash. He told her to go
into the bathroom and close the door, which she did. The
customer left, taking the money and the beer.
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 3 of 8

1The witnesses’ testimony varies somewhat as to whether
Broadbent reentered the store twice or three times before the
robbery and as to the type of hat King described.
4
Broadbent saw the customer leave and came back into the
store because the pump was still not operating. He saw that the
cash drawer was open but King was not there. He called out,
“Hello,” and King came out of the bathroom. She said that the
store had been robbed, and she was upset. King pushed the alarm
to the Concord Police Department and then talked with an officer
on the telephone. The police arrived while she was still on the
telephone. She described the customer who robbed the store as a
black man, somewhat taller than she was, with a black leather
jacket, and wearing a black hat.1
After the clerk at the nearby Holiday Inn reported that a
suspicious person had tried to rent a room there without
identification, Concord police officers searched the area behind
the Holiday Inn, along Storrs Street. They soon found Gordon
Reid in the area of the Ralph Pill facility. Officer Fallon
drove Reid back to the Hess Station for a “show-up”
identification, to see if the witnesses would recognize him as
the customer who robbed the store. Officer Fanjoy, who stayed at
the Hess Station with King and the Broadbents, told them that a
police officer was bringing someone to the station for
identification. King and Broadbent gave statements to the
police.
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 4 of 8

2The testimony varied somewhat about Reid’s demeanor during
the identification process.
3The testimony varied somewhat about where the witnesses
were standing during the identifications.
5
Officer Fanjoy located his cruiser so that he could shine
his spotlight where Officer Fallon would park the cruiser with
Reid. Reid was riding in the back seat of Officer Fallon’s
cruiser. When they arrived, he tried to turn away from the
window and the light, but the officers pushed him back up and
turned his head toward the window.2 Officer Fanjoy walked with
King to within twenty feet of the cruiser where Reid was
sitting.3 The area was well-lighted with overhead lights and
also with the light from Officer Fanjoy’s cruiser. As soon as
Reid’s head was turned to the window, King identified him as the
customer who robbed the store. Broadbent and his son were
standing behind Officer Fanjoy and King. When Reid’s head was
turned toward the window, Broadbent identified Reid as the
customer he had seen in the store.
A. Impermissibly Suggestive
The “show-up” identification procedure, in which a suspect
is shown to a witness alone rather than as part of a line up, is
disfavored as being impermissibly suggestive. United States v.
de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993). In some
circumstances, however, the show-up procedure has been found not
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 5 of 8

6
to be unreasonably suggestive. See United States v. Watson, 76
F.3d 4, 6 (1st Cir. 1996) (“Show-ups that take place immediately
after the offense has been committed may be necessary in order to
avoid the mistaken apprehension of the wrong person.”) Lebron-
Cepeda, 324 F.3d at 59 (identification not impermissibly
suggestive because identification was contemporaneous with events
even though defendant identified after witness saw him sitting
handcuffed in police cruiser). Nevertheless, in this case the
government makes no developed argument that the show-up procedure
used here was not impermissibly suggestive. Therefore, the court
will move to the second prong of the test. See United States v.
Henderson, 320 F.3d 92, 100 (1st Cir. 2003)
B. Reliability
“‘[R]eliability is the linchpin in determining the
admissibility of identification testimony.’” Id. (quoting Manson
v. Brathwaite, 432 U.S. 98, 114 (1977)). Reliability is
determined based on the totality of the circumstances of the
identification process. Lopez-Lopez, 282 F.3d 10-11. Five
factors are used to evaluate reliability: “(1) the opportunity
of the witness to view the criminal at the time of the crime; (2)
the witness’ degree of attention; (3) the accuracy of the
witness’ prior description of the defendant; (4) the level of
certainty demonstrated by the witness at the confrontation; (5)
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 6 of 8

7
the length of time between the crime and the confrontation.”
Henderson, 320 F.3d at 100 (citing Neil v. Biggers, 409 U.S. 188,
199-200 (1972)).
Both King and Broadbent had an opportunity to view the
customer in the store. King, despite her nervousness, interacted
with the customer over several minutes. Broadbent interacted
with the customer when he prepaid for his gas and saw him when he
came back in to inquire about the pump. Both had paid sufficient
attention to the customer to form a reliable memory. Although
some of the details of the witnesses’ descriptions may vary
slightly, in large part the descriptions were consonant,
supporting their accuracy. King was completely certain about her
identification. Although Broadbent’s identification of Reid may
have been somewhat less certain, any uncertainty can be addressed
through cross examination. Less than an hour elapsed between the
time of the robbery and the witnesses’ identification of Reid.
Based on the totality of the circumstances and focusing on
the five factors for evaluating reliability, the identifications
of Reid as the man who robbed the Hess station made by King and
Broadbent are sufficiently reliable to be admissible. That is so
whether or not the show-up procedure was impermissibly
suggestive. Based on the circumstances, there is not a
substantial likelihood of “irreparable misidentification” in the
identifications made by either witness. de Jesus-Rios, 990 F.2d
at 677.
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 7 of 8

8
Conclusion
For the foregoing reasons, the defendants’ motions to
suppress identifications (documents no. 88 and 89) are denied.
SO ORDERED.
Joseph A. DiClerico, Jr.
United States District Judge
February 9, 2006
cc: Gordon Reid, pro se
Michael J. Iacopino, Esquire
Helen W. Fitzgibbon, Esquire
Clyde R. W. Garrigan, Esquire
U.S. Probation
U.S. Marshal
Case 1:05-cr-00057-SM Document 129 Filed 02/09/06 Page 8 of 8