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 of the Hess

Gas Station and Convenience Store in Concord, New Hampshire,

under the Hobbs Act, 18 U.S.C. § 1951. His first trial ended in

a mistrial when the jury was unable to reach a unanimous verdict. 

Reid, proceeding pro se, files a motion for judgment of acquittal

or to dismiss the indictment and four motions in limine to

exclude evidence. The government has filed objections to the

motions.

I. Motion for Judgment of Acquittal or to Dismiss the Indictment

Reid asserts that he is entitled to a judgment of acquittal,

or in the alternative, dismissal of the indictment in this case

based on his allegations of prosecutorial and police misconduct. 

Reid alleges that the prosecutors pressured Deborah Poirier into

recanting her original statement about her lack of knowledge of

the robbery of the Hess Store and giving a second statement that

implicated him in the robbery. He also alleges that Poirier’s

second statement was fabricated and that the prosecutors

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knowingly used Poirier’s perjured testimony at his first trial. 

He further alleges that the government knowingly used false

evidence and perjured testimony about evidence found on the night

of the robbery by the Concord police.

Prosecutorial misconduct that deprives a defendant of a fail

trial is grounds for a new trial. United States v. Casas, 425

F.3d 23, 38 (1st Cir. 2005). Under Federal Rule of Criminal

Procedure 29(c), a defendant may move for a judgment of acquittal

after the jury has been discharged based on a claim that the

evidence was insufficient to sustain a conviction. A judgment of

acquittal for government misconduct “might be warranted in the

event that deliberate misconduct of Government counsel is so

outrageous as not only to render the trial in progress unfair but

also to make a fair trial in the future impossible.” United

States v. Lema, 909 F.2d 561, 569 n.12 (1st Cir. 1990) (internal

quotation marks omitted). “In rare and extreme circumstances, a

federal court has the authority to dismiss criminal charges as a

sanction for government misconduct.” United States v. Guzman,

282 F.3d 56, 59 (1st Cir. 2002).

Far from demonstrating outrageous or extreme government

misconduct, Reid has not proven that any government misconduct

occurred at all. Reid’s suspicions, allegations, and theories

are insufficient to support his motion. Therefore, the sanctions

he requests are not appropriate.

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II. Motion in Limine IV (Evidence of Prior Bad Acts)

Reid moves to exclude testimony at trial about his use of

crack cocaine on the night of the robbery and on other occasions. 

The government confirms that Deborah Poirier and Rosita Ellison

will testify at trial about Reid’s drug use on the night of the

robbery and on prior occasions, along with other conduct by Reid,

to “prove[] facts at issue in the case including motive,

opportunity, intent, preparation, plan, knowledge, or absence of

mistake or accident.” Obj. at 2 (internal quotation marks

omitted). The government also states that it “does not waive the

right to argue this is not ‘bad acts,” [sic] but is relevant,

intrinsic evidence concerning the crime charged” and argues that

the same evidence “may also be admissible as incriminating

admissions by the defendant.” Id.

“The admissibility of Rule 404(b) evidence is considered in

two steps: ‘first, a court must determine whether the evidence

in question has any special relevance exclusive of defendant’s

character or propensity; and second, notwithstanding its special

relevance, whether the evidence meets the standard set forth in

Fed. R. Evid. 403.’” United States v. Landrau-Lopez, 2006 WL

888097, at *3 (1st Cir. Apr. 6, 2006) (quoting United States v.

Decicco, 370 F.3d 206, 211 (1st Cir. 2004)). The special

relevance step is also analyzed under a two-prong test: “‘the

remoteness in time of the other act and the degree of resemblance

to the crime charged.’” Id. (quoting Decicco, 370 F.3d at 212). 

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Rule 403 balances the probative value of evidence against the

likelihood of unfair prejudice. Id. at *4.

Some of the Rule 404(b) grounds that the government raises

in a general manner may be arguably applicable to the challenged

evidence of Reid’s drug use. The government has not, however,

provided a sufficient showing of “special relevance” or satisfied

the Rule 403 requirements to demonstrate that such evidence would

be admissible at trial. This issue can best be addressed in the

context of the trial, and its resolution may depend, in part, on

what evidence Reid elicits. Therefore, the admissibility of

evidence of Reid’s drug use prior to or on the night of the

robbery may not be elicited from any witness without prior

approval by the court. Witnesses shall be instructed not to

volunteer such information during their testimony.

III. Motion in Limine V (Testimony of Deborah Poirier)

Reid moves to exclude the testimony of Deborah Poirier on

the grounds that her testimony is unreliable and would be perjury

and that the government has withheld exculpatory evidence. Reid

also asserts that the government should be precluded from

offering Poirier’s testimony under Federal Rule of Criminal

Procedure 16(d)(2)(C). The alleged inconsistency in Poirier’s

testimony, which is the basis of Reid’s motion, is the date when

the government knew that Poirier recanted her first statement,

made to a Concord police officer, about the robbery. Reid

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1Because the court granted Reid’s motion to delay

consideration of his motion to disqualify to give him an

opportunity to review trial transcripts, the court will not

consider the affidavits submitted in opposition to the motion to

disqualify for purposes this motion to exclude Poirier’s

testimony.

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asserts that the government represented that it first knew of

Poirier’s recantation about November 22, 2005, while Poirier

testified that she recanted her statement in August of 2005 and

met with the federal prosecutor shortly after that time.

In response, the government represents that it has provided

Reid with all discoverable information about Poirier, including

information about her cooperation with the government and the

pending federal charges against her. The government also points

out that Reid has asserted the same inconsistency about the date

of Poirier’s recantation and meeting with the government in

support of his motion to disqualify AUSA Helen Fitzgibbon. The

government refers the court to its objection to that motion and

affidavits filed with the objection.1

In the absence of any proof of Reid’s assertions and

theories, there is no basis to exclude Poirier’s testimony or

find any discovery misfeasance by the government. The court also

reiterates its previous ruling about Poirier’s trial testimony:

“It is not uncommon for a witness to have given inconsistent

statements for a variety of reasons. It is for the jury to

assess a witness’s credibility and to determine what weight it is

to be given.” Endorsed Order, Feb. 14, 2006.

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IV. Motion in Limine VI (Reference to “Robbery”)

Reid asks that the government be precluded from referring to

the incident at the Hess store as a “robbery” and from eliciting

testimony from witnesses about a “robbery” at the store. He

argues that whether or not a robbery occurred at the Hess store

on the night in question is a matter in dispute. Given the jury

instructions that will explain the nature of the charge, the

elements of the crime charged, and the government’s burden to

prove all of those elements, references to the incident as a

“robbery” are not improper.

V. Motion in Limine VII (Hearsay)

Reid moves to exclude testimony from Deborah Poirier about

statements he made to her on the night of the robbery that he was

going to rob a store and that he was going to buy a toy gun for

the purpose of robbing a store. Reid contends that those

statements are inadmissible hearsay. The government responds

that those statements are admissions and not hearsay under

Federal Rule of Evidence 801(d)(2).

“Rule 801(d)(2)(A) exempt[s] from the hearsay rule a party’s

own statement when offered against that party.” United States v.

Garza, 435 F.3d 73, 77 (1st Cir. 2006); United States v. Shea,

211 F.3d 658, 668 (1st Cir. 2000). Therefore, a government

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witness can recount at trial out-of-court incriminating

statements made by the defendant to that witness. Id. 

The challenged statements are not hearsay under Rule

801(d)(2)(A). 

Conclusion

For the foregoing reasons, the defendant’s motion for

judgment of acquittal (document no. 177) is denied. The

defendants motions in limine are resolved as follows: the motion

IV to exclude evidence of prior bad acts (document no. 239) is

granted without prejudice to the government during the course of

the trial to obtain prior approval from the court to elicit such

evidence, and witnesses shall be instructed not to volunteer such

information during their testimony; the motion in limine V to

exclude the testimony of Deborah Poirier (document no. 240) is

denied; the motion in limine VI to prohibit any reference to

“robbery” (document no. 237) is denied; the motion in limine VII

to exclude hearsay (document no. 238) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 17, 2006

cc: Gordon Reid, pro se

Michael J. Iacopino, Esquire

Helen W. Fitzgibbon, Esquire

Clyde R.W. Garrigan, Esquire

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