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 of the Hess
Gas Station and Convenience Store in Concord, New Hampshire,
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.
Reid, proceeding pro se, files a motion for judgment of acquittal
or to dismiss the indictment and four motions in limine to
exclude evidence. The government has filed objections to the
motions.
I. Motion for Judgment of Acquittal or to Dismiss the Indictment
Reid asserts that he is entitled to a judgment of acquittal,
or in the alternative, dismissal of the indictment in this case
based on his allegations of prosecutorial and police misconduct.
Reid alleges that the prosecutors pressured Deborah Poirier into
recanting her original statement about her lack of knowledge of
the robbery of the Hess Store and giving a second statement that
implicated him in the robbery. He also alleges that Poirier’s
second statement was fabricated and that the prosecutors
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knowingly used Poirier’s perjured testimony at his first trial.
He further alleges that the government knowingly used false
evidence and perjured testimony about evidence found on the night
of the robbery by the Concord police.
Prosecutorial misconduct that deprives a defendant of a fail
trial is grounds for a new trial. United States v. Casas, 425
F.3d 23, 38 (1st Cir. 2005). Under Federal Rule of Criminal
Procedure 29(c), a defendant may move for a judgment of acquittal
after the jury has been discharged based on a claim that the
evidence was insufficient to sustain a conviction. A judgment of
acquittal for government misconduct “might be warranted in the
event that deliberate misconduct of Government counsel is so
outrageous as not only to render the trial in progress unfair but
also to make a fair trial in the future impossible.” United
States v. Lema, 909 F.2d 561, 569 n.12 (1st Cir. 1990) (internal
quotation marks omitted). “In rare and extreme circumstances, a
federal court has the authority to dismiss criminal charges as a
sanction for government misconduct.” United States v. Guzman,
282 F.3d 56, 59 (1st Cir. 2002).
Far from demonstrating outrageous or extreme government
misconduct, Reid has not proven that any government misconduct
occurred at all. Reid’s suspicions, allegations, and theories
are insufficient to support his motion. Therefore, the sanctions
he requests are not appropriate.
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II. Motion in Limine IV (Evidence of Prior Bad Acts)
Reid moves to exclude testimony at trial about his use of
crack cocaine on the night of the robbery and on other occasions.
The government confirms that Deborah Poirier and Rosita Ellison
will testify at trial about Reid’s drug use on the night of the
robbery and on prior occasions, along with other conduct by Reid,
to “prove[] facts at issue in the case including motive,
opportunity, intent, preparation, plan, knowledge, or absence of
mistake or accident.” Obj. at 2 (internal quotation marks
omitted). The government also states that it “does not waive the
right to argue this is not ‘bad acts,” [sic] but is relevant,
intrinsic evidence concerning the crime charged” and argues that
the same evidence “may also be admissible as incriminating
admissions by the defendant.” Id.
“The admissibility of Rule 404(b) evidence is considered in
two steps: ‘first, a court must determine whether the evidence
in question has any special relevance exclusive of defendant’s
character or propensity; and second, notwithstanding its special
relevance, whether the evidence meets the standard set forth in
Fed. R. Evid. 403.’” United States v. Landrau-Lopez, 2006 WL
888097, at *3 (1st Cir. Apr. 6, 2006) (quoting United States v.
Decicco, 370 F.3d 206, 211 (1st Cir. 2004)). The special
relevance step is also analyzed under a two-prong test: “‘the
remoteness in time of the other act and the degree of resemblance
to the crime charged.’” Id. (quoting Decicco, 370 F.3d at 212).
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Rule 403 balances the probative value of evidence against the
likelihood of unfair prejudice. Id. at *4.
Some of the Rule 404(b) grounds that the government raises
in a general manner may be arguably applicable to the challenged
evidence of Reid’s drug use. The government has not, however,
provided a sufficient showing of “special relevance” or satisfied
the Rule 403 requirements to demonstrate that such evidence would
be admissible at trial. This issue can best be addressed in the
context of the trial, and its resolution may depend, in part, on
what evidence Reid elicits. Therefore, the admissibility of
evidence of Reid’s drug use prior to or on the night of the
robbery may not be elicited from any witness without prior
approval by the court. Witnesses shall be instructed not to
volunteer such information during their testimony.
III. Motion in Limine V (Testimony of Deborah Poirier)
Reid moves to exclude the testimony of Deborah Poirier on
the grounds that her testimony is unreliable and would be perjury
and that the government has withheld exculpatory evidence. Reid
also asserts that the government should be precluded from
offering Poirier’s testimony under Federal Rule of Criminal
Procedure 16(d)(2)(C). The alleged inconsistency in Poirier’s
testimony, which is the basis of Reid’s motion, is the date when
the government knew that Poirier recanted her first statement,
made to a Concord police officer, about the robbery. Reid
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1Because the court granted Reid’s motion to delay
consideration of his motion to disqualify to give him an
opportunity to review trial transcripts, the court will not
consider the affidavits submitted in opposition to the motion to
disqualify for purposes this motion to exclude Poirier’s
testimony.
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asserts that the government represented that it first knew of
Poirier’s recantation about November 22, 2005, while Poirier
testified that she recanted her statement in August of 2005 and
met with the federal prosecutor shortly after that time.
In response, the government represents that it has provided
Reid with all discoverable information about Poirier, including
information about her cooperation with the government and the
pending federal charges against her. The government also points
out that Reid has asserted the same inconsistency about the date
of Poirier’s recantation and meeting with the government in
support of his motion to disqualify AUSA Helen Fitzgibbon. The
government refers the court to its objection to that motion and
affidavits filed with the objection.1
In the absence of any proof of Reid’s assertions and
theories, there is no basis to exclude Poirier’s testimony or
find any discovery misfeasance by the government. The court also
reiterates its previous ruling about Poirier’s trial testimony:
“It is not uncommon for a witness to have given inconsistent
statements for a variety of reasons. It is for the jury to
assess a witness’s credibility and to determine what weight it is
to be given.” Endorsed Order, Feb. 14, 2006.
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IV. Motion in Limine VI (Reference to “Robbery”)
Reid asks that the government be precluded from referring to
the incident at the Hess store as a “robbery” and from eliciting
testimony from witnesses about a “robbery” at the store. He
argues that whether or not a robbery occurred at the Hess store
on the night in question is a matter in dispute. Given the jury
instructions that will explain the nature of the charge, the
elements of the crime charged, and the government’s burden to
prove all of those elements, references to the incident as a
“robbery” are not improper.
V. Motion in Limine VII (Hearsay)
Reid moves to exclude testimony from Deborah Poirier about
statements he made to her on the night of the robbery that he was
going to rob a store and that he was going to buy a toy gun for
the purpose of robbing a store. Reid contends that those
statements are inadmissible hearsay. The government responds
that those statements are admissions and not hearsay under
Federal Rule of Evidence 801(d)(2).
“Rule 801(d)(2)(A) exempt[s] from the hearsay rule a party’s
own statement when offered against that party.” United States v.
Garza, 435 F.3d 73, 77 (1st Cir. 2006); United States v. Shea,
211 F.3d 658, 668 (1st Cir. 2000). Therefore, a government
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witness can recount at trial out-of-court incriminating
statements made by the defendant to that witness. Id.
The challenged statements are not hearsay under Rule
801(d)(2)(A).
Conclusion
For the foregoing reasons, the defendant’s motion for
judgment of acquittal (document no. 177) is denied. The
defendants motions in limine are resolved as follows: the motion
IV to exclude evidence of prior bad acts (document no. 239) is
granted without prejudice to the government during the course of
the trial to obtain prior approval from the court to elicit such
evidence, and witnesses shall be instructed not to volunteer such
information during their testimony; the motion in limine V to
exclude the testimony of Deborah Poirier (document no. 240) is
denied; the motion in limine VI to prohibit any reference to
“robbery” (document no. 237) is denied; the motion in limine VII
to exclude hearsay (document no. 238) is denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 17, 2006
cc: Gordon Reid, pro se
Michael J. Iacopino, Esquire
Helen W. Fitzgibbon, Esquire
Clyde R.W. Garrigan, Esquire
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