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 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. Before

second trial, Reid has filed a variety of motions, many of which

are duplicates of motions he filed before his first trial. The

deadline for filing pretrial motions has now passed, and the

pending motions that are not being held in abeyance and that have

responses from the government are resolved as follows.

 I. Discovery

The constitution does not mandate discovery in criminal

cases. United States v. Caro-Muniz, 406 F.3d 22, 29 (1st Cir.

2005). Federal Rule of Criminal Procedure provides for discovery

and disclosure in criminal cases. Rule 16(a) requires initial

disclosures by the government, and Rule 16(c) imposes a

continuing duty on the government to disclose evidence or

material that is subject to discovery or inspection under Rule 16

and in compliance with previous court orders.

Case 1:05-cr-00057-SM Document 246 Filed 03/28/06 Page 1 of 7
2

A. Negatives and Photographs

Reid moves to compel the government to provide him with

negatives and photographs printed from the negatives of “any and

all photographs taken.” That request is apparently broader than

the certain black and white photographs that were at issue in the

first trial. On February 27, 2006, the court ordered the

government to provide Reid with copies of the black and white 

photographs. Reid represents that the government gave him

photocopies of the photographs rather than actual photographs

made from the negatives. The government represents that it gave

Reid photocopies of all photographs in the government’s

possession. He contends that he needs the actual negatives and

photographs to properly scrutinize that evidence and also,

possibly, for review by an expert witness.

The government does not object to providing Reid with actual

photographs made from the negatives. The government does object

to providing the negatives to Reid, because the negatives are the

original evidence, but offers to allow standby counsel and any

expert retained by Reid to view the negatives. The government

also offers to permit defendant to view the negatives in court at

the next scheduled court meeting.

Although it is not entirely clear which photographs are in

question, based on the government’s representation, it would

appear that the issue raised in Reid’s motion is resolved.

Case 1:05-cr-00057-SM Document 246 Filed 03/28/06 Page 2 of 7
3

B. Motion to Compel Further Discovery

Reid seeks an order to require the government to turn over

to him all information in its possession pertaining to a robbery

of a Dunkin Donuts store in Grafton County, New Hampshire, that

involved Renee King’s brothers. Reid bases his motion on Renee

King’s testimony during the suppression hearing that her brothers

had been accused of such a robbery. As the government points

out, Reid previously moved to compel the same evidence and that

motion was denied on February 13, 2006. The government further

represents that it has disclosed all information pertaining to

Renee King’s brothers.

Therefore, the motion is denied.

 II. Motions Pertaining to Reid’s Previous Incarceration and

 Criminal Record

In separate motions, Reid moves to preclude the government

from referring to or eliciting testimony about his previous

incarceration and from referring to or eliciting testimony about

his criminal record. Reid raised the same issues in motions

filed before his first trial. The government is directed not to

refer to or elicit testimony about Reid’s previous incarceration

or his criminal record without first seeking permission from the

court to do so. The court will then rule on the matter in the

context of the evidence produced at trial. The government and

Case 1:05-cr-00057-SM Document 246 Filed 03/28/06 Page 3 of 7
4

standby counsel shall instruct witnesses not to mention these

matters during their testimony. 

III. Chain of Custody

Reid has notified the government that he intends to require

the government to establish the chain of custody as to any item

it introduces at trial. In response, the government points out

that Reid admitted at trial that certain items introduced at the

first trial were his property. The government argues that in

light of those admissions, it should not be required to prove the

chain of custody as to each item introduced.

Proof of the chain of custody authenticates both the source

of the item and that it has not been altered or adulterated, by

establishing that it is more likely than not that the offered

item is what it purports to be. Fed. R. Evid. 901(a); United

States v. Abreu, 952 F.2d 1458, 1467 91st Cir. 1992). “A

possible defect in the chain of custody for a certain piece of

evidence factors into the weight given to the evidence rather

than its admissibility.” United States v. Scharon, 187 F.3d 17,

22 (1st Cir. 1999).

During the first trial, the government had to recall

witnesses in order to address chain of custody matters. The

court expects the government to address chain of custody matters

during each witness’s direct testimony so as to avoid undue delay

Case 1:05-cr-00057-SM Document 246 Filed 03/28/06 Page 4 of 7
5

in recalling witnesses. Once Reid has had an opportunity to

review the transcript of the first trial, he shall notify the

government if any chain of custody issue can be agreed to (i.e.

with reference to specific items). 

 IV. Sequestration

Reid moves to have all witnesses sequestered from the

courtroom until they testify and are discharged. The government

does not object. The motion is granted. The government and

standby counsel shall instruct all witnesses that a sequestration

order is in effect and that they are not to discuss their

testimony with other witnesses.

 V. Motions to Dismiss

Reid has refiled motions to dismiss that were denied before

his first trial, specifically, he again moves to dismiss for lack

of a speedy indictment and to dismiss the superseding indictment

for lack of specificity as to the required intent. The motions

to dismiss for lack of speedy indictment and lack of specificity

of intent are denied for the reasons stated in the court’s orders

issued on February 1, 2006, and February 7, 2006.

Reid also moves to dismiss the indictment on the grounds of

selective prosecution. Before his first trial, Reid filed four

motions seeking discovery from the government to support his

Case 1:05-cr-00057-SM Document 246 Filed 03/28/06 Page 5 of 7
6

allegations of selective prosecution. His theory then and now is

that the United States Attorneys in New Hampshire prosecute

defendants, including him, on Hobbs Act violations based on their

race. Reid’s principal point is that the federal prosecutors

brought the Hobbs Act charge against him but not against Deborah

Poirier, who rode in the car with him on the night of the alleged

robbery and who is white. The court denied Reid’s requests for

discovery on the issue of selective prosecution on the ground

that he had not provided any credible evidence of discrimination. 

 Although Reid’s argument is presented in terms of a motion

to dismiss rather than a motion for discovery on the issue of

selective prosecution, it is no more persuasive. For the reasons

stated in the court’s order issued on January 13, 2006, the

motion is denied. 

Conclusion

For the foregoing reasons, the defendant’s motion to compel

(document no. 202) is terminated based on the government’s

represented solution. The defendant’s motion to compel further

discovery (document no. 171) is denied. The defendant’s motions

to exclude evidence of his previous incarceration and criminal

record (documents no. 190, 191, 192) are granted subject to the

condition set forth in this order. The defendant’s motion to

sequester witnesses (document no. 197) is granted. The

Case 1:05-cr-00057-SM Document 246 Filed 03/28/06 Page 6 of 7
7

defendants’ motions to dismiss (documents no. 193, 196, and 201)

are denied.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

March 28, 2006

cc: Gordon Reid, pro se

Michael J. Iacopino, Esquire

Helen W. Fitzgibbon, Esquire

Clyde R.W. Garrigan, Esquire

U.S. Probation

U.S. Marshal

Case 1:05-cr-00057-SM Document 246 Filed 03/28/06 Page 7 of 7