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 was charged with one count of interference with
interstate 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 disqualify the lead prosecutor in this case, Helen White
Fitzgibbon, on the ground that he intends to call her as a
witness at trial. Reid moves to dismiss the charge against him,
asserting a violation of the Speedy Trial Act. He also moves to
dismiss the second superseding indictment as deficient.
I. Motion to Disqualify
Reid included the lead prosecutor in this case, Helen White
Fitzgibbon, on his witness list. In anticipation of calling
Fitzgibbon as a witness at trial, Reid moves to disqualify her
from serving as the prosecutor in his case. Reid states that he
intends to call Fitzgibbon to testify about certain matters
pertaining to two government witnesses, Deborah Poirier and Renee
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 1 of 8

2
King.
“[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 of the
rule, “[a] defendant must establish a ‘compelling need’ before
being allowed to call a prosecutor as a trial witness, a step
that will usually require the prosecutor to step aside.” United
States v. Oreto, 37 F.3d 739, 746 (1st Cir. 1994). A compelling
need cannot be shown as long as other sources are available for
the same evidence. See United States v. Bin Laden, 91 F. Supp.
2d 600, 623 (S.D.N.Y. 2000).
Reid previously sought discovery from the government
focusing on promises the government may have made to Poirier
related to her recanted statement about the robbery and her
expected testimony at Reid’s trial, including all correspondence
between Poirier’s counsel and the government in relation to any
charge Poirier may have had pending within the last two years.
The magistrate judge denied Reid’s motion to compel further
discovery on the grounds that Reid had been provided a copy of
the letter from Poirier’s attorney to the government and that the
government stated there were no other promises made to Poirier.
Unsatisfied with that result, Reid now seeks to examine
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 2 of 8

3
Fitzgibbon at trial about the government’s dealings with Poirier.
Reid’s attempt to call Fitzgibbon to testify about the
government’s relationship with Poirier appears to be an attempt
to evade the court’s discovery ruling. He has provided nothing
that suggests the government has withheld information that should
have been disclosed. He also has provided nothing that suggests
Fitzgibbon would have admissible evidence that is not available
through cross-examination of Poirier or other witnesses.
Therefore, Reid has not made the necessary showing of compelling
need with respect to testimony by Fitzgibbon related to Poirier.
Reid also seeks Fitzgibbon’s testimony about assistance the
government has provided to another government witness, Renee
King. Reid states that, based on disclosures he has received
from the government, the government has provided financial
assistance to King. He has not indicated that any information
has been withheld from him, nor has he explained what information
he would seek about that assistance from Fitzgibbon. Therefore,
he has not made the necessary showing with respect to testimony
by Fitzgibbon about King.
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 3 of 8

4
II. Motion to Dismiss for Lack of Speedy Indictment
Reid contends that the indictment against him must be
dismissed because the original indictment was filed more than
thirty days after he was arrested and because the superseding
indictments were even more delayed. The government opposes his
motion, contending that it is untimely and fails on the merits.
As was addressed in response to Reid’s previous motion to
dismiss the indictment, such motions should have been filed
twenty-one days before trial. See Fed. R. Crim. P. 12(b)(3)(B);
LCrR 12.1(b). Because trial is scheduled to begin on February 7,
2006, and the motion was filed on February 2, 2006, it is not
timely. Even if it were considered on the merits, however, the
motion would fail.
18 U.S.C. § 3161(b) provides that an indictment must be
filed within thirty days “from the date on which such individual
was arrested or served with a summons in connection with such
charges.” The Speedy Trial Act, of which § 3161(b) is a part,
“applies only to federal criminal prosecutions, and the time
limit is triggered only by an arrest ‘in connection with [a
criminal] charge.’” United States v. Garcia-Martinez, 254 F.3d
16, 19 (1st Cir. 2001) (quoting § 3161(b)). The Speedy Trial Act
is not triggered when the defendant is arrested by state officers
and charged with state crimes, even when federal officers or
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 4 of 8

5
prosecutors are also involved in the investigation. Id. (citing
cases from other jurisdictions). An exception exists if the
state authorities are holding the defendant at the request of
federal authorities or if federal and state authorities are
involved in collusion, as distinct from intergovernmental
cooperation, to extend the time for the federal authorities to
procure an indictment. See, e.g., United States v. Woolfolk, 399
F.3d 590, 596 (4th Cir. 2005); United States v. Badru, 97 F.3d
1471, 1476 (D.C. Cir. 1996). Further, a Sixth Amendment
violation depends on the result of weighing four factors, the
length and reasons for the delay, the defendant’s position as to
the delay, and prejudice caused by the delay. United states v.
Mala, 7 F.3d 1058, 1061 (1st Cir. 1993) (citing Barker v. Wingo,
407 U.S. 514, 530 (1972), and United States v. Ewell, 383 U.S.
116, 120 (1966)).
Reid acknowledges that he was arrested by Concord (New
Hampshire) Police Officers on February 13, 2005. He was then
held at the Merrimack County Jail on state charges. He was
indicted on the federal Hobbs Act charge on April 13, 2006. He
contends that the federal and state authorities colluded to delay
the federal indictment in order to prevent him from obtaining
evidence in support of his defense that he was impaired by an
unknown substance slipped into his drink on the night the robbery
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 5 of 8

6
occurred.
The report of Concord Police Officer Michael D. Cassidy,
dated February 23, 2005, states that he submitted a copy of his
report to the United States Attorney’s Office for review and that
he would conduct any further investigation requested by that
office, suggesting that the federal authorities were notified of
the robbery at that time. There is no evidence, however, of
collusion to delay the federal indictment for any reason,
including to prevent Reid from obtaining evidence. In fact, the
police record Reid submits shows that blood was drawn when he was
taken to Concord Hospital the night of the robbery. He has not
said that the blood sample or the results of any testing were not
available to him. In addition, even under Reid’s theory that he
had ninety days from the date of the incident to have a hair
sample tested by a toxicologist, he has not shown that he was
unable to accomplish the testing during the remaining month after
he was indicted on federal charges. Therefore, there is no basis
to dismiss the indictment under § 3161(b) or as a violation of
the Sixth Amendment, based on the dates of his arrest and the
original indictment.
Reid also argues that the superseding indictments, filed in
August of 2005 and February of 2006, are untimely. The two
superseding indictments contained the same single Hobbs Act
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 6 of 8

7
charge based on the same facts as the original indictment. The
first superseding indictment included a statement about
interstate commerce and added other names used by Gordon Reid.
The second superseding indictment added “knowingly” to the same
Hobbs Act charge. As such, the superseding indictments are not
subject to the thirty-day rule of § 3161(b). United States v.
Mitchell, 723 F.3d 1040, 1044-45 (1st Cir. 1983); United States
v. Brown, 335 F. Supp. 2d 146, 148-49 (D. Me. 2004).
III. Motion to Dismiss Second Superseding Indictment
Reid moves to dismiss the second superseding indictment as
deficient because it alleges that he committed the robbery
“knowingly” but does not also allege “purposefully.” The court
previously addressed the elements of the Hobbs Act charge in
denying Reid’s motion to dismiss the prior indictment. The
addition of “knowingly” makes explicit the intent that may
otherwise be inferred from the remainder of the charge.
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 7 of 8

8
Conclusion
For the foregoing reasons, the defendant’s motion to
disqualify (document no. 112) and his motions to dismiss
(documents no. 105 and 111) are denied.
SO ORDERED.
Joseph A. DiClerico, Jr.
United States District Judge
February 7, 2006
cc: Gordon Reid, pro se
Michael J. Iacopino, Esquire
Clyde R.W. Garrigan, Esquire
Helen W. Fitzgibbon, Esquire
U.S. Probation
U.S. Marshal
Case 1:05-cr-00057-SM Document 123 Filed 02/07/06 Page 8 of 8