1Although Reid filed three motions under seal, he refers to

those motions in the fourth motion, which is not filed under

seal, and filed a supporting memorandum for all four motions,

which is also not filed under seal.

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 indicted on one count of interference with

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. Reid is

proceeding pro se, with appointed stand-by counsel. He has filed

four motions, three of them ex parte motions under seal, seeking

discovery related to his claim of selective prosecution.1 The

government has responded to the motion seeking discovery from it,

which is not ex parte or filed under seal.

Reid contends that the Office of the United States Attorney,

for the District of New Hampshire (“U.S. Attorney’s Office”) does

not prosecute white individuals under the Hobbs Act unless the

violation is within the heightened standard set in the United

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2

States Attorney Manual but does prosecute black individuals whose

violations do not meet the heightened standard. He seeks

discovery from the New Hampshire Public Defender, the Federal

Public Defender, and the New Hampshire Administrative Office of

the Courts of information about cases during the past ten years

in which the defendant was charged with robbery of a business and

violation of New Hampshire Revised Statutes Annotated § 636:1,

including the race or ethnicity of the defendant. Reid seeks

more wide-ranging discovery from the government, generally

pertaining to its prosecution of Hobbs Act violations. The

government objects to Reid’s motion for discovery. The other

entities have not responded because the motions pertaining to

them were filed ex parte.

“A selective-prosecution claim is not a defense on the

merits to the criminal charge itself, but an independent

assertion that the prosecutor has brought the charge for reasons

forbidden by the Constitution.” United States v. Armstrong, 517

U.S. 456, 463 (1996). To succeed on such a claim, Reid would

have to show that he “was prosecuted while others similarly

situated were not” and that the prosecutorial decision was based

on an impermissible consideration such as race. United States v.

Peterson, 233 F.3d 101, 105 (1st Cir. 2000); see also Armstrong,

517 U.S. at 464-68. Because the government has broad discretion

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3

in making the decision to prosecute, a presumption of regularity

protects those decisions. Id. at 464. To obtain discovery on a

selective-prosecution claim, a defendant must present “some

evidence tending to show the existence of the essential elements”

of the claim, that is, evidence of a “discriminatory effect and

discriminatory intent.” Id. at 468; see also United States v.

Magana, 127 F.3d 1, 8 (1st Cir. 1997). That standard requires

“the defendant to produce some evidence that similarly situated

defendants of other races could have been prosecuted, but were

not,” meaning “a credible showing of different treatment of

similarly situated persons.” Id. at 469 & 470.

In support of his discovery requests, Reid begins by quoting

from the United States Attorneys Manual, policy 9-131.030, that

advises use of the Hobbs Act robbery offense under § 1951 “only

in instances involving organized crime, gang activity, or wideranging schemes.” He contends that the U.S. Attorney’s Office

adheres to that policy only with respect to white defendants but

not as to black defendants, such as himself. He states that he

has found that reported and pending federal cases in New

Hampshire, involving white defendants charged under the Hobbs

Act, comply with the Manual policy, because the defendants were

all involved in wide-ranging schemes. In contrast, he points to

his own case and one other where black defendants were charged

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2Reid contends that this practice is either because the

state does not refer white defendants to federal prosecutors or

because federal prosecutors decline to prosecute white defendants

who are referred from the state.

4

with Hobbs Act crimes based on a single robbery, contrary to the

Manual policy. He also reports that the LexisNexis data base

shows “a plethora” of white defendants who could have been

prosecuted under the Hobbs Act for single robberies but instead

were prosecuted in the state system. He points out that the U.S.

Attorney’s Office did not prosecute Debra Poirer, who is white

and who was arrested at the time of his arrest and charged with

conspiracy to commit robbery, while they did prosecute him.2

Reid further contends that the government “solicits proffers

and like agreements” from white defendants in order to obtain

evidence against their black co-defendants, who are not offered

deals. In support of his theory, he provides the affidavits of

Matthias Morgan and Charles Glen who are both black. They

recount their experiences in which a white co-defendant gave

evidence against them, although the government did not offer them

the same opportunity to provide evidence in exchange for

leniency. Reid states in his affidavit that he was not offered

any kind of a deal in exchange for evidence that he might

provide.

The government responds, supported by the affidavit of the

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3The government also notes that the Manual provides no

substantive rights for criminal defendants. Here, however, the

Manual is cited only for the purpose of showing the government’s

selective adherence to the policy on Hobbs Act crimes as part of

Reid’s claim of a discriminatory intent.

5

Chief of the Criminal Division of the U.S. Attorney’s Office,

that the office does not make prosecutorial decisions based upon

the race of the accused and did not do so in Reid’s case. The

government states that while the policy stated in the Manual is

one consideration in the prosecution decision, there are others,

including the defendant’s criminal history and whether a firearm

was used or threatened in the commission of the robbery.3 In

particular, under a Department of Justice program titled “Project

Safe Neighborhood,” the U.S. Attorney’s Office prosecutes crimes

in which a firearm was used or threatened. The government points

out that Reid has an extensive criminal history and was on parole

at the time of his arrest and that he threatened to use a firearm

as part of the robbery. Those are the factors, according to the

government, that led to Reid’s prosecution on the Hobbs Act

charge. 

In contrast, Poirier was sitting in her car during the

robbery attempt and initially denied any knowledge of Reid’s plan

to rob the store. The state dropped the charges against her due

to a lack of evidence. Later, however, Poirier admitted knowing

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6

of Reid’s intent and agreed to provide evidence against him. 

Poirier has also been indicted by a federal grand jury for

distributing crack cocaine and will be tried on those charges in

February of 2006.

In his affidavit, the Chief of the Criminal Division also

provided a list of twenty-five cases in which defendants were

charged under the Hobbs Act during the past five years. For each

case, the race of the defendant is included in parentheses based

on the recollections of the Assistant United States Attorneys who

handled the cases. Those cases involve sixteen defendants listed

as Caucasians, one Asian, seven African-Americans, and one

Hispanic. A quick check of this court’s dockets for the cited

cases shows that several of the white defendants were prosecuted

for single robbery Hobbs Act violations that are remarkably

similar to the crime with which Reid is charged.

Reid’s argument that the government selectively prosecuted

him under the Hobbs Act, based on his race, is not supported by

credible evidence of discrimination. There is even less support

for his claim that the government selectively offers plea deals

based on race. Therefore, additional discovery on Reid’s

selective prosecution claim is not warranted.

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Conclusion

For the foregoing reasons, the defendant’s motions for

discovery and for subpoena duces tecum (documents no. 50, 51, 52,

53, 57, 58, and 59) are denied.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

January 13, 2006

cc: Gordon Reid, pro se

Helen W. Fitzgibbon, Esquire

Michael J. Iacopino, Esquire

U.S. Probation

U.S. Marshal

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