USA v. Reid

1Reid’s first motion to disqualify was denied on February 7,
2006. See Order, Feb. 7, 2006, doc. no. 123.
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 on that charge
ended in a mistrial when the jury was unable to reach a unanimous
verdict. Reid, who is proceeding pro se, filed a motion to
dismiss the indictment on the ground of double jeopardy and a
renewed motion to disqualify Assistant United States Attorney
Helen Fitzgibbon.1 Transcripts of the trial were produced, and
Reid has had an opportunity to review them. He has filed
supplementary motions, and the government has filed objections.
I. Motion to Dismiss
Reid moves to dismiss the indictment in this case, asserting
that because his first trial ended in a mistrial, he cannot be
retried for the same offense. He contends that a second trial
would violate the Double Jeopardy Clause of the Fifth Amendment.
The government objects to the motion.
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“[T]he Double Jeopardy Clause protects defendants against
serial attempts by the government to convict a defendant on a
single charge.” United States v. Brown, 426 F.3d 32, 36 (1st
Cir. 2005). In a criminal case tried to a jury, jeopardy
attaches when the jury is sworn, United States v. Toribio-Lugo,
376 F.3d 33, 37-38 (1st Cir. 2004), and continues until a
terminating event such as acquittal or an invalid mistrial,
United States v. Julien, 318 F.3d 316, 321 (1st Cir. 2003).
Double jeopardy protection bars “retrial of a defendant after a
mistrial ordered over the defendant’s objection unless the
mistrial was occasioned by manifest necessity.” United States v.
McIntosh, 380 F.3d 548, 553 (1st Cir. 2004).
In support of his motion to dismiss, Reid contends that the
court declared a mistrial prematurely without giving him an
opportunity to object, that the court failed to reinstruct on the
burden of proof, as he had asked, that the court improperly
placed the burden on him to show that a manifest necessity did
not exist, and that the prosecutors purposefully instigated a
mistrial.
A. Decision to Declare a Mistrial
“Although the government bears the burden of establishing
manifest necessity, a hung jury is the paradigmatic example of
manifest necessity.” Brown, 426 F.3d at 36 (internal quotation
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2Reid mistakenly states in his supplemental motion that the
jury resumed its deliberations at 11:20 a.m., which is the time
the transcribed record of court proceedings that day began. The
jury resumed deliberations shortly after nine a.m.
3
marks omitted). A review of whether manifest necessity existed
to support a mistrial is considered in the specific context of
the case but three factors are particularly relevant to the
inquiry: “(1) whether the court provided counsel an opportunity
to be heard; (2) whether the court considered alternatives to a
mistrial; and (3) whether the court’s decision was made after
adequate reflection.” Id. (citing United States v. Simonetti,
998 F.2d 39, 41 (1st Cir. 1993)).
In this case, the court declared a mistrial when the jury
could not reach a unanimous verdict, that is, because of a hung
jury. Before reaching that point, the jury sent several
questions to the court that indicated they were having difficulty
reaching a verdict. The jury began its deliberations at one in
the afternoon on February 21, 2006. Just before five p.m., the
jury asked: “If we are not close to a decision do we leave at 5
pm and come back tomorrow morning[?]”
The government and Reid were informed of the note, which was
then addressed in open court. The jury was told that they could
stay and work later if they wanted to but that it was customary
to recess at five and to return to deliberations in the morning.
The jury chose to leave and to return at nine o’clock the next
morning.2
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At 2:15 p.m. on the second day of deliberations, the jury
asked: “We cannot come to a unamious [sic] decision, what do we
do?” The government and Reid were given copies of the note.
Before the jury was called into the courtroom, the court
explained to the parties that it intended to ask the jury to
continue their deliberations to try to reach a verdict. The
court proposed to reinstruct the jury, using the modified Allen
charge that had been given as part of the jury instructions.
Reid asked that the jury also be reinstructed on the burden of
proof. Although the court initially declined to reinstruct on
the burden of proof, that instruction was ultimately given.
The jury was brought into the courtroom and was given the
following charge:
You’ve been deliberating now for a little over a
full day. What I am going to ask you to do is to go
back and deliberate a little bit more, just for a
reasonable period of time, for what you consider to be
a reasonable period of time, to see if you can arrive
at a verdict. And I will remind you of an instruction
that I gave you at the conclusion of my instructions
yesterday, and that is, it is your duty as jurors to
consult with one another and to deliberate with a view
to reaching an agreement if you can do so without
violence to individual judgment. Each of you must
decide the case for yourself but do so only after an
impartial consideration of the evidence in the case
with the other jurors. In the course of your
deliberations, do not hesitate to change – to examine
your own views and to change your opinion if convinced
it is erroneous, but do not surrender your honest
conviction as to the weight or effect of the evidence
solely because of the opinion of the other jurors or
merely for the purpose of returning a verdict.
So I would ask you to keep those instructions in
mind, and I would also remind you, of course, about my
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instructions concerning reasonable doubt, that the
burden always rests on the government to prove all of
the material elements of the offense charged beyond a
reasonable doubt.
So, as I said, I will ask you to go back and to
spend what you consider to be a reasonable amount of
time to see if you can arrive at a verdict, and if you
come to the conclusion that there is no reasonable
probability that you can, then send another note out to
me and I will have you returned to the courtroom and I
will ask the foreperson that question.
So give it a little more time. As I said, I will
allow you to determine what you think a reasonable
amount of time is to see if you can resolve the matter.
All right.
Following that instruction, the jury left the courtroom to resume
deliberations. The court then noted that if the jury was unable
to reach a verdict, it would be necessary to declare a mistrial.
Reid understood that a mistrial would be declared in that event.
At five o’clock the jury sent a note that stated: “Your
Honor, we are unable to come to a unanimous decision. We feel we
have come to an impasse in this case and can go no further.”
Copies of the note were given to Reid and the government, and
they were given an opportunity to be heard. Reid asked the court
to order the jury to continue their deliberations for at least
one more day. The court responded that the jury had “given it
their best,” but that the foreperson would be asked whether there
was a reasonable probability that further deliberations would
result in a verdict. The court explained that if the answer was
no, there would not be much choice but to declare a mistrial.
The government asked the court to inquire as to the split in the
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jury if a mistrial were declared. Reid joined in the
government’s request, but reiterated his objection to a mistrial.
The jury was brought into the courtroom, and the foreperson
was asked whether there was any reasonable probability that the
jury might reach a verdict with further deliberations. The
foreperson stated that after conferring with the other jurors she
believed they had reached an impasse. The court inquired of the
other jurors, and they all agreed that they had reached an
impasse. The court then stated:
All right. The jury having reported to the Court
that it is unable to arrive at a unanimous verdict and
that there is no reasonable probability that further
deliberations would result in a verdict, the Court
finds that there is manifest necessity to declare a
mistrial, and therefore a mistrial is declared. This
case will be rescheduled for trial before another jury.
After declaring a mistrial, the court asked the foreperson about
the split of the jury, in terms of numbers, and she reported that
eleven jurors would find Reid guilty and one juror would not.
The jury was discharged.
As the chronology of events leading to the declaration of a
mistrial demonstrates, Reid and the government were kept informed
of the jury’s notes and had ample opportunity to express their
opinions and objections. Reid took full advantage of those
opportunities, and the court considered his requests and
objections. Contrary to Reid’s argument in his motion, the court
did reinstruct the jury on the burden of proof, as he had asked.
The court did not require or expect Reid to show that a mistrial
was not necessary. See Brown, 426 F.3d at 38 & n.2.
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3Although Reid now suggests that the court should have
questioned the single hold-out juror to see if he or she were
participating in deliberations, he did not request that
alternative at the time. Further, that alternative would not
have been appropriate under the circumstances in this case and
would not appear to have been in Reid’s best interest because
eleven of the twelve jurors believed he was guilty. See
McIntosh, 380 F.3d at 552, 556, & n.3.
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Instead, the decision to declare a mistrial was based on the
specific circumstances presented in this case. The jury
deliberated for just under thirteen hours and clearly
demonstrated that it was unable to reach a verdict, despite the
its renewed efforts after the court reinstructed on the modified
Allen charge and the burden of proof. Reid’s request that the
jury be required to deliberate for at least one additional day,
under the circumstances, was not reasonable.3 The mistrial was
declared because of a deadlocked jury, which in this case
constituted manifest necessity for that decision.
B. Prosecutorial Misconduct
Reid contends that the prosecutors knowingly used perjured
testimony from Deborah Poirier, which violated due process. He
also argues that the prosecutors were dissatisfied with the
presentation of the government’s case because Renee King had
“substantial character issues” and David Broadbent did not give
the testimony the prosecutors expected about his observations
during the robbery. As a result, Reid theorizes, the prosecutors
accused Broadbent of perjury and “asked inflammatory and highly
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prejudicial questions” of Reid on cross examination, intending to
goad him into requesting a mistrial. He contends that the
court’s rulings that denied his motions for a mistrial were
erroneous and that the government should not be allowed to retry
him after the mistrial when it would not have been allowed to do
so if his motions had been granted.
“It is settled law that the Double Jeopardy Clause provides
a defendant with a shield against prosecutorial maneuvering
designed to provoke a mistrial.” McIntosh, 380 F.3d at 557
(citing Oregon v. Kennedy, 456 U.S. 667, 674 (1982)). That rule
comes into play “if the prosecutor purposefully instigated a
mistrial or if he committed misconduct designed to bring one
about.” Id. In this context, “prosecutorial misconduct must
rise to an egregious level . . . [and] only where the misconduct
of the prosecutor is undertaken to prevent an acquittal that he
believed at the time was likely to occur in the absence of his
misconduct.” United States v. Gary, 74 F.3d 304, 315 (1st Cir.
1996).
Those unusual circumstances did not occur in this case.
Reid’s motions for a mistrial were properly denied. The mistrial
was declared because of a deadlocked jury, not because of
prosecutorial misconduct or error. To the extent Reid is asking
the court to revisit its rulings denying his motions for a
mistrial, such a request is both untimely and not persuasive.
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See also Orders on Reid’s motion to dismiss & motion to strike
(docs. no. 157 & 158).
II. Motion to Disqualify AUSA Helen Fitzgibbon
Reid renews his motion to disqualify AUSA Fitzgibbon on the
ground that he intends to call her as a witness to testify about
the circumstances of the government’s contact with Deborah
Poirier before she implicated Reid in the Hess Express robbery.
He contends that he has a Sixth Amendment right to call
Fitzgibbon as a witness and that the advocate-witness rule
prohibits her from acting as both a witness and an advocate at
trial, requiring her to be disqualified from participating in the
prosecution of this case. The government objects to Reid’s
motion, again asserting that Reid has not met his burden of
showing a compelling need for Fitzgibbon’s testimony at trial.
The Sixth Amendment guarantees a criminal defendant “a
meaningful opportunity to present a complete defense.” Holmes v.
South Carolina, 126 S. Ct. 1727, 1731 (2006) (internal quotation
marks omitted). That right, however, is not unbounded. Id.; see
also United States v. Wooten, 377 F.3d 1134, 1142-43 (10th Cir.
2004). “[T]he advocate-witness rule [] generally bars an
attorney from appearing as both an advocate and a witness in the
same litigation.” United States v. Angiulo, 897 F.2d 1169, 1194
(1st Cir. 1990) (internal quotation marks omitted). Because the
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rule would usually require a prosecutor to be disqualified if he
or she were going to testify at trial, “[a] defendant must
establish a ‘compelling need’ before being allowed to call a
prosecutor as a trial witness.” United States v. Oreto, 37 F.3d
739, 746 (1st Cir. 1994); see also United States v. Ziesman, 409
F.3d 941, 950 (8th Cir. 2005). A compelling need cannot be shown
as long as other sources are available for the same evidence.
See id.; United States v. Ashman, 979 F.2d 469, 494 (7th Cir.
1993); United States v. Bin Laden, 91 F. Supp. 2d 600, 623
(S.D.N.Y. 2000).
Poirier originally gave a statement to the Concord police
that did not implicate Reid in the Hess Express robbery. On
November 22, 2005, at a meeting that included Concord Police
Detective Daniel McDonald, Manchester Police Detective Eric
Beland, AUSA Helen Fitzgibbon, and AUSA Clyde Garrigan at the
office of the United States Attorney in Concord, Poirier, who was
accompanied by her lawyer, was interviewed by Detective McDonald.
Poirier said that she did not tell the truth in her first
statement. She explained what had happened on the night of the
Hess Express robbery, including Reid’s plan to rob a store in
Concord to get money to buy more crack. She also described
Reid’s activities before he left her waiting in her car.
AUSA Fitzgibbon states in her affidavit, filed in support of
the government’s objection to Reid’s motion for disqualification,
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that John Tuthill, an investigator with the United States
Attorney’s Office in Concord, met with Poirier on August 23,
2005, in Nashua and gave Fitzgibbon’s business card to Poirier.
Soon after that meeting, Fitzgibbon states, Poirier called her
about arranging a future meeting. Poirier was indicted on
unrelated charges on September 7, 2005, and that case was handled
by another AUSA in the Concord office. Fitzgibbon provided a
“proffer letter,” dated November 22, 2005, which is addressed to
Poirier’s counsel, Richard Monteith, and which provides the terms
for the government’s use of any statement made by Poirier.
Fitzgibbon also states that the meeting at which Poirier gave her
statement to the police and federal prosecutors, called a proffer
session, occurred on November 22, 2005.
Reid hopes to present evidence that the government induced
Poirier to change her story in exchange for leniency in the
pending criminal case against her. He appears to believe that
there are inconsistencies between Poirier’s version of the
chronology of her contacts with the government and Fitzgibbon’s
version. Poirier and her attorney both testified at Reid’s first
trial about the chronology and circumstances of Poirier’s
decision to recant. Reid states that he intends to call
Fitzgibbon to impeach Poirier’s testimony about those events.
Other than to show that Poirier may remember some events
leading up to November 22, 2005, differently than Fitzgibbon, it
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is difficult to see the purpose of the testimony Reid is seeking.
The minor discrepancies Reid cites do not appear to favor him and
do little to impeach Poirier’s credibility. Reid will again have
the opportunity to examine Poirier and her counsel about the
chronology and circumstances of Poirier’s decision to recant her
first statement. In addition, Reid will have the benefit of the
testimony given at the first trial. Further, Reid has not
explained why Tuthill is not available to testify about his
knowledge of those events. Therefore, Reid has not shown a
compelling need for Fitzgibbon’s testimony as part of his
defense. Absent that showing, no basis exists to allow him to
call the Assistant United States Attorney as a trial witness.
Conclusion
For the foregoing reasons, the defendant’s motions to
dismiss (documents no. 170 and 312) are denied. The defendant’s
motions for disqualification (documents no. 176 and 313) are also
denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 21, 2006
cc: Grodon Reid, pro se
Michael J. Iacopino, Esquire
Helen W. Fitzgibbon, Esquire
Clyde R. W. Garrigan, Esquire
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