USA v. Reid

1 Intent, that is that a charged Hobbs Act violation was
committed knowingly and willfully, is an essential element of the
offense. United States v. Cruzado-Laureano, 404 F.3d 470, 480
(1st Cir. 2005).
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 moves, pursuant to Federal Rules of Criminal
Procedure 12(b)(3)(B), to dismiss the superseding indictment,
charging him with a Hobbs Act violation, on the ground that it is
deficient because it fails to allege intent.1 Reid relies on
United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999), in
which the court held that a timely challenge to an indictment
alleging a Hobbs Act violation should be granted if the
indictment fails to allege intent. The government responds,
relying on United States v. Gray, 260 F.3d 1267, 1282-83 (11th
Cir. 2001), that the indictment is not deficient, despite the
absence of an allegation of intent, because intent may be
inferred from the wrongful conduct alleged.
As a preliminary matter, Reid’s motion is untimely. Federal
Rule of Criminal Procedure 12(c) allows the court to set
deadlines for pretrial motions. Under the local rules of this
district, dispositive motions must be filed “no later than
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twenty-one (21) days prior to trial.” LCrR 12.1(b). Federal
Rule of Criminal Procedure 12(e) provides that “[a] party waives
any Rule 12(b)(3) defense, objection, or request not raised by
the deadline the court sets under Rule 12(c) or by any extension
the court provides.”
No extension of the twenty-one day deadline was requested or
provided in this case. The trial is scheduled to begin on
February 7, 2006. Reid filed the Rule 12(b)(3) motion on January
27, 2006. Therefore, Reid failed to file the motion before the
deadline, waiving the issue of the sufficiency of the indictment
that he raises. See United States v. Rodriguez-Marrero, 390 F.3d
1, 11-12 (1st Cir. 2004).
If the motion had been timely filed, a question would arise
as to which of the standards to apply in this case. However, the
Du Bo standard, on which Reid relies, applies only when an
indictment is challenged by a timely motion. See United States
v. Mojica-Baez, 229 F.3d 292, 308 (1st Cir. 2000). When a
defendant makes a late objection that the indictment fails to
charge an essential element of the offense, the objection “‘shall
be noticed by the court at any time during the pendency of the
proceedings.’” Id. at 309 (quoting Fed. R. Crim. P. 12(b)(2),
amend. eff. Dec. 1, 2002). In that event, the court need only
determine whether the indictment sufficiently informed the
accused of the offense with which he is charged and would allow
him to assert a defense of double jeopardy in subsequent
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2The Hobbs Act provides, in pertinent part:
“Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this
title or imprisoned not more than twenty years, or
both.”
18 U.S.C. § 1951(a). Robbery is defined as:
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prosecutions. Id. When the indictment incorporates the
statutory language stating the offense, it must also provide
“‘such a statement of the facts and circumstances as will inform
the accused of the specific offence, coming under the general
description, with which he is charged.’” Id. (quoting Hamling v.
United States, 418 U.S. 87, 117-18 (1974)).
The superseding indictment in this case charged, in
pertinent part:
On or about February 13, 2005, in Concord, in the
District of New Hampshire, the defendant, GORDON REID
. . . did unlawfully take and obtain personal property
consisting of money and other property belonging to the
Hess Gas Station and Convenience Store at 175 North
Main Street, Concord, New Hampshire, from an employee
of the Hess Station and Convenience store [sic],
against the employee’s will, by means of force,
violence and fear of injury.
That charge tracks the statutory language and includes specific
detail about the offense, but omits any allegation that the
robbery was committed knowingly or willfully.2
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“the unlawful taking or obtaining of personal property
from the person or in the presence of another, against
his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to
his person or property, or property in his custody or
possession, or the person or property of a relative or
member of his family or of anyone in his company at the
time of the taking or obtaining.”
§ 1951(b)(1).
4
In United States v. Woodruff, 296 F.3d 1041, 1046-47 (11th
Cir. 2002), and Gray, 260 F.3d at 1283, the Eleventh Circuit held
that intent could be inferred from allegations that tracked the
Hobbs Act. Specifically, the court concluded that because the
indictment charged that the accused “‘did unlawfully take and
obtain personal property . . . by means of actual and threatened
force, violence, and fear of immediate injury’ . . . [it]
necessarily alerted the defendant that he was charged with having
knowingly committed the crime.” Woodruff, 296 F.3d at 1047;
accord Hughes v. United States, 241 F. Supp. 2d 148, 153 (D.R.I.
2003).
The same reasoning is persuasive in this case. The
indictment charges Reid with robbery, in the language of the
statute and includes specific detail about the crime. It may be
inferred that the robbery was committed knowingly and willfully
from the charge that Reid took money and property from the store
“against the employee’s will, by means of force, violence and
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fear of injury.” Based on the analysis that is more fully set
forth in Woodruff, the indictment is sufficient to convey that
Reid is charged with acting knowingly and willfully.
Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 87) is denied.
SO ORDERED.
Joseph A. DiClerico, Jr.
United States District Judge
February 1, 2006
cc: Gordon Reid, pro se
Helen W. Fitzgibbon, Esquire
Michael J. Iacopino, Esquire
U.S. Probation
U.S. Marshal
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