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 robbery under the
Hobbs Act, 18 U.S.C. § 1951. His first trial ended in a mistrial
when the jury was unable to reach a unanimous verdict. Before
second trial, Reid has filed a variety of motions, many of which
are duplicates of motions he filed before his first trial. The
deadline for filing pretrial motions has now passed, and the
pending motions that are not being held in abeyance and that have
responses from the government are resolved as follows.
I. Discovery
The constitution does not mandate discovery in criminal
cases. United States v. Caro-Muniz, 406 F.3d 22, 29 (1st Cir.
2005). Federal Rule of Criminal Procedure provides for discovery
and disclosure in criminal cases. Rule 16(a) requires initial
disclosures by the government, and Rule 16(c) imposes a
continuing duty on the government to disclose evidence or
material that is subject to discovery or inspection under Rule 16
and in compliance with previous court orders.
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A. Negatives and Photographs
Reid moves to compel the government to provide him with
negatives and photographs printed from the negatives of “any and
all photographs taken.” That request is apparently broader than
the certain black and white photographs that were at issue in the
first trial. On February 27, 2006, the court ordered the
government to provide Reid with copies of the black and white
photographs. Reid represents that the government gave him
photocopies of the photographs rather than actual photographs
made from the negatives. The government represents that it gave
Reid photocopies of all photographs in the government’s
possession. He contends that he needs the actual negatives and
photographs to properly scrutinize that evidence and also,
possibly, for review by an expert witness.
The government does not object to providing Reid with actual
photographs made from the negatives. The government does object
to providing the negatives to Reid, because the negatives are the
original evidence, but offers to allow standby counsel and any
expert retained by Reid to view the negatives. The government
also offers to permit defendant to view the negatives in court at
the next scheduled court meeting.
Although it is not entirely clear which photographs are in
question, based on the government’s representation, it would
appear that the issue raised in Reid’s motion is resolved.
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B. Motion to Compel Further Discovery
Reid seeks an order to require the government to turn over
to him all information in its possession pertaining to a robbery
of a Dunkin Donuts store in Grafton County, New Hampshire, that
involved Renee King’s brothers. Reid bases his motion on Renee
King’s testimony during the suppression hearing that her brothers
had been accused of such a robbery. As the government points
out, Reid previously moved to compel the same evidence and that
motion was denied on February 13, 2006. The government further
represents that it has disclosed all information pertaining to
Renee King’s brothers.
Therefore, the motion is denied.
II. Motions Pertaining to Reid’s Previous Incarceration and
Criminal Record
In separate motions, Reid moves to preclude the government
from referring to or eliciting testimony about his previous
incarceration and from referring to or eliciting testimony about
his criminal record. Reid raised the same issues in motions
filed before his first trial. The government is directed not to
refer to or elicit testimony about Reid’s previous incarceration
or his criminal record without first seeking permission from the
court to do so. The court will then rule on the matter in the
context of the evidence produced at trial. The government and
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standby counsel shall instruct witnesses not to mention these
matters during their testimony.
III. Chain of Custody
Reid has notified the government that he intends to require
the government to establish the chain of custody as to any item
it introduces at trial. In response, the government points out
that Reid admitted at trial that certain items introduced at the
first trial were his property. The government argues that in
light of those admissions, it should not be required to prove the
chain of custody as to each item introduced.
Proof of the chain of custody authenticates both the source
of the item and that it has not been altered or adulterated, by
establishing that it is more likely than not that the offered
item is what it purports to be. Fed. R. Evid. 901(a); United
States v. Abreu, 952 F.2d 1458, 1467 91st Cir. 1992). “A
possible defect in the chain of custody for a certain piece of
evidence factors into the weight given to the evidence rather
than its admissibility.” United States v. Scharon, 187 F.3d 17,
22 (1st Cir. 1999).
During the first trial, the government had to recall
witnesses in order to address chain of custody matters. The
court expects the government to address chain of custody matters
during each witness’s direct testimony so as to avoid undue delay
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in recalling witnesses. Once Reid has had an opportunity to
review the transcript of the first trial, he shall notify the
government if any chain of custody issue can be agreed to (i.e.
with reference to specific items).
IV. Sequestration
Reid moves to have all witnesses sequestered from the
courtroom until they testify and are discharged. The government
does not object. The motion is granted. The government and
standby counsel shall instruct all witnesses that a sequestration
order is in effect and that they are not to discuss their
testimony with other witnesses.
V. Motions to Dismiss
Reid has refiled motions to dismiss that were denied before
his first trial, specifically, he again moves to dismiss for lack
of a speedy indictment and to dismiss the superseding indictment
for lack of specificity as to the required intent. The motions
to dismiss for lack of speedy indictment and lack of specificity
of intent are denied for the reasons stated in the court’s orders
issued on February 1, 2006, and February 7, 2006.
Reid also moves to dismiss the indictment on the grounds of
selective prosecution. Before his first trial, Reid filed four
motions seeking discovery from the government to support his
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allegations of selective prosecution. His theory then and now is
that the United States Attorneys in New Hampshire prosecute
defendants, including him, on Hobbs Act violations based on their
race. Reid’s principal point is that the federal prosecutors
brought the Hobbs Act charge against him but not against Deborah
Poirier, who rode in the car with him on the night of the alleged
robbery and who is white. The court denied Reid’s requests for
discovery on the issue of selective prosecution on the ground
that he had not provided any credible evidence of discrimination.
Although Reid’s argument is presented in terms of a motion
to dismiss rather than a motion for discovery on the issue of
selective prosecution, it is no more persuasive. For the reasons
stated in the court’s order issued on January 13, 2006, the
motion is denied.
Conclusion
For the foregoing reasons, the defendant’s motion to compel
(document no. 202) is terminated based on the government’s
represented solution. The defendant’s motion to compel further
discovery (document no. 171) is denied. The defendant’s motions
to exclude evidence of his previous incarceration and criminal
record (documents no. 190, 191, 192) are granted subject to the
condition set forth in this order. The defendant’s motion to
sequester witnesses (document no. 197) is granted. The
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defendants’ motions to dismiss (documents no. 193, 196, and 201)
are denied.
SO ORDERED.
Joseph A. DiClerico, Jr.
United States District Judge
March 28, 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
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