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

Case 1:05-cr-00057-SM Document 95 Filed 02/01/06 Page 1 of 5
2

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

Case 1:05-cr-00057-SM Document 95 Filed 02/01/06 Page 2 of 5
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: 

3

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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5

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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