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

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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

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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.

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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

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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

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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

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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. 

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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

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