1Reid’s first motion to disqualify was denied on February 7,

2006. See Order, Feb. 7, 2006, doc. no. 123.

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 on that charge

ended in a mistrial when the jury was unable to reach a unanimous

verdict. Reid, who is proceeding pro se, filed a motion to

dismiss the indictment on the ground of double jeopardy and a

renewed motion to disqualify Assistant United States Attorney

Helen Fitzgibbon.1 Transcripts of the trial were produced, and

Reid has had an opportunity to review them. He has filed

supplementary motions, and the government has filed objections.

I. Motion to Dismiss

Reid moves to dismiss the indictment in this case, asserting

that because his first trial ended in a mistrial, he cannot be

retried for the same offense. He contends that a second trial

would violate the Double Jeopardy Clause of the Fifth Amendment. 

The government objects to the motion.

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2

“[T]he Double Jeopardy Clause protects defendants against

serial attempts by the government to convict a defendant on a

single charge.” United States v. Brown, 426 F.3d 32, 36 (1st

Cir. 2005). In a criminal case tried to a jury, jeopardy

attaches when the jury is sworn, United States v. Toribio-Lugo,

376 F.3d 33, 37-38 (1st Cir. 2004), and continues until a

terminating event such as acquittal or an invalid mistrial,

United States v. Julien, 318 F.3d 316, 321 (1st Cir. 2003).

Double jeopardy protection bars “retrial of a defendant after a

mistrial ordered over the defendant’s objection unless the

mistrial was occasioned by manifest necessity.” United States v.

McIntosh, 380 F.3d 548, 553 (1st Cir. 2004). 

In support of his motion to dismiss, Reid contends that the

court declared a mistrial prematurely without giving him an

opportunity to object, that the court failed to reinstruct on the

burden of proof, as he had asked, that the court improperly

placed the burden on him to show that a manifest necessity did

not exist, and that the prosecutors purposefully instigated a

mistrial. 

A. Decision to Declare a Mistrial

“Although the government bears the burden of establishing

manifest necessity, a hung jury is the paradigmatic example of

manifest necessity.” Brown, 426 F.3d at 36 (internal quotation

Case 1:05-cr-00057-SM Document 327 Filed 06/21/06 Page 2 of 12
2Reid mistakenly states in his supplemental motion that the

jury resumed its deliberations at 11:20 a.m., which is the time

the transcribed record of court proceedings that day began. The

jury resumed deliberations shortly after nine a.m.

3

marks omitted). A review of whether manifest necessity existed

to support a mistrial is considered in the specific context of

the case but three factors are particularly relevant to the

inquiry: “(1) whether the court provided counsel an opportunity

to be heard; (2) whether the court considered alternatives to a

mistrial; and (3) whether the court’s decision was made after

adequate reflection.” Id. (citing United States v. Simonetti,

998 F.2d 39, 41 (1st Cir. 1993)).

In this case, the court declared a mistrial when the jury

could not reach a unanimous verdict, that is, because of a hung

jury. Before reaching that point, the jury sent several

questions to the court that indicated they were having difficulty

reaching a verdict. The jury began its deliberations at one in

the afternoon on February 21, 2006. Just before five p.m., the

jury asked: “If we are not close to a decision do we leave at 5

pm and come back tomorrow morning[?]” 

The government and Reid were informed of the note, which was

then addressed in open court. The jury was told that they could

stay and work later if they wanted to but that it was customary

to recess at five and to return to deliberations in the morning. 

The jury chose to leave and to return at nine o’clock the next

morning.2 

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At 2:15 p.m. on the second day of deliberations, the jury

asked: “We cannot come to a unamious [sic] decision, what do we

do?” The government and Reid were given copies of the note. 

Before the jury was called into the courtroom, the court

explained to the parties that it intended to ask the jury to

continue their deliberations to try to reach a verdict. The

court proposed to reinstruct the jury, using the modified Allen

charge that had been given as part of the jury instructions. 

Reid asked that the jury also be reinstructed on the burden of

proof. Although the court initially declined to reinstruct on

the burden of proof, that instruction was ultimately given.

The jury was brought into the courtroom and was given the

following charge:

 You’ve been deliberating now for a little over a

full day. What I am going to ask you to do is to go

back and deliberate a little bit more, just for a

reasonable period of time, for what you consider to be

a reasonable period of time, to see if you can arrive

at a verdict. And I will remind you of an instruction

that I gave you at the conclusion of my instructions

yesterday, and that is, it is your duty as jurors to

consult with one another and to deliberate with a view

to reaching an agreement if you can do so without

violence to individual judgment. Each of you must

decide the case for yourself but do so only after an

impartial consideration of the evidence in the case

with the other jurors. In the course of your

deliberations, do not hesitate to change – to examine

your own views and to change your opinion if convinced

it is erroneous, but do not surrender your honest

conviction as to the weight or effect of the evidence

solely because of the opinion of the other jurors or

merely for the purpose of returning a verdict.

 So I would ask you to keep those instructions in

mind, and I would also remind you, of course, about my

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5

instructions concerning reasonable doubt, that the

burden always rests on the government to prove all of

the material elements of the offense charged beyond a

reasonable doubt.

 So, as I said, I will ask you to go back and to

spend what you consider to be a reasonable amount of

time to see if you can arrive at a verdict, and if you

come to the conclusion that there is no reasonable

probability that you can, then send another note out to

me and I will have you returned to the courtroom and I

will ask the foreperson that question.

 So give it a little more time. As I said, I will

allow you to determine what you think a reasonable

amount of time is to see if you can resolve the matter. 

All right.

Following that instruction, the jury left the courtroom to resume

deliberations. The court then noted that if the jury was unable

to reach a verdict, it would be necessary to declare a mistrial. 

Reid understood that a mistrial would be declared in that event.

At five o’clock the jury sent a note that stated: “Your

Honor, we are unable to come to a unanimous decision. We feel we

have come to an impasse in this case and can go no further.” 

Copies of the note were given to Reid and the government, and

they were given an opportunity to be heard. Reid asked the court

to order the jury to continue their deliberations for at least

one more day. The court responded that the jury had “given it

their best,” but that the foreperson would be asked whether there

was a reasonable probability that further deliberations would

result in a verdict. The court explained that if the answer was

no, there would not be much choice but to declare a mistrial. 

The government asked the court to inquire as to the split in the

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6

jury if a mistrial were declared. Reid joined in the

government’s request, but reiterated his objection to a mistrial.

The jury was brought into the courtroom, and the foreperson

was asked whether there was any reasonable probability that the

jury might reach a verdict with further deliberations. The

foreperson stated that after conferring with the other jurors she

believed they had reached an impasse. The court inquired of the

other jurors, and they all agreed that they had reached an

impasse. The court then stated:

 All right. The jury having reported to the Court

that it is unable to arrive at a unanimous verdict and

that there is no reasonable probability that further

deliberations would result in a verdict, the Court

finds that there is manifest necessity to declare a

mistrial, and therefore a mistrial is declared. This

case will be rescheduled for trial before another jury.

After declaring a mistrial, the court asked the foreperson about

the split of the jury, in terms of numbers, and she reported that

eleven jurors would find Reid guilty and one juror would not. 

The jury was discharged.

As the chronology of events leading to the declaration of a

mistrial demonstrates, Reid and the government were kept informed

of the jury’s notes and had ample opportunity to express their

opinions and objections. Reid took full advantage of those

opportunities, and the court considered his requests and

objections. Contrary to Reid’s argument in his motion, the court

did reinstruct the jury on the burden of proof, as he had asked. 

The court did not require or expect Reid to show that a mistrial

was not necessary. See Brown, 426 F.3d at 38 & n.2. 

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3Although Reid now suggests that the court should have

questioned the single hold-out juror to see if he or she were

participating in deliberations, he did not request that

alternative at the time. Further, that alternative would not

have been appropriate under the circumstances in this case and

would not appear to have been in Reid’s best interest because

eleven of the twelve jurors believed he was guilty. See

McIntosh, 380 F.3d at 552, 556, & n.3. 

7

Instead, the decision to declare a mistrial was based on the

specific circumstances presented in this case. The jury

deliberated for just under thirteen hours and clearly

demonstrated that it was unable to reach a verdict, despite the 

its renewed efforts after the court reinstructed on the modified

Allen charge and the burden of proof. Reid’s request that the

jury be required to deliberate for at least one additional day,

under the circumstances, was not reasonable.3 The mistrial was

declared because of a deadlocked jury, which in this case

constituted manifest necessity for that decision. 

B. Prosecutorial Misconduct

Reid contends that the prosecutors knowingly used perjured

testimony from Deborah Poirier, which violated due process. He

also argues that the prosecutors were dissatisfied with the

presentation of the government’s case because Renee King had

“substantial character issues” and David Broadbent did not give

the testimony the prosecutors expected about his observations

during the robbery. As a result, Reid theorizes, the prosecutors

accused Broadbent of perjury and “asked inflammatory and highly

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8

prejudicial questions” of Reid on cross examination, intending to

goad him into requesting a mistrial. He contends that the

court’s rulings that denied his motions for a mistrial were

erroneous and that the government should not be allowed to retry

him after the mistrial when it would not have been allowed to do

so if his motions had been granted.

“It is settled law that the Double Jeopardy Clause provides

a defendant with a shield against prosecutorial maneuvering

designed to provoke a mistrial.” McIntosh, 380 F.3d at 557

(citing Oregon v. Kennedy, 456 U.S. 667, 674 (1982)). That rule

comes into play “if the prosecutor purposefully instigated a

mistrial or if he committed misconduct designed to bring one

about.” Id. In this context, “prosecutorial misconduct must

rise to an egregious level . . . [and] only where the misconduct

of the prosecutor is undertaken to prevent an acquittal that he

believed at the time was likely to occur in the absence of his

misconduct.” United States v. Gary, 74 F.3d 304, 315 (1st Cir.

1996). 

Those unusual circumstances did not occur in this case. 

Reid’s motions for a mistrial were properly denied. The mistrial

was declared because of a deadlocked jury, not because of

prosecutorial misconduct or error. To the extent Reid is asking

the court to revisit its rulings denying his motions for a

mistrial, such a request is both untimely and not persuasive. 

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9

See also Orders on Reid’s motion to dismiss & motion to strike

(docs. no. 157 & 158). 

II. Motion to Disqualify AUSA Helen Fitzgibbon

Reid renews his motion to disqualify AUSA Fitzgibbon on the

ground that he intends to call her as a witness to testify about

the circumstances of the government’s contact with Deborah

Poirier before she implicated Reid in the Hess Express robbery. 

He contends that he has a Sixth Amendment right to call

Fitzgibbon as a witness and that the advocate-witness rule

prohibits her from acting as both a witness and an advocate at

trial, requiring her to be disqualified from participating in the

prosecution of this case. The government objects to Reid’s

motion, again asserting that Reid has not met his burden of

showing a compelling need for Fitzgibbon’s testimony at trial.

The Sixth Amendment guarantees a criminal defendant “a

meaningful opportunity to present a complete defense.” Holmes v.

South Carolina, 126 S. Ct. 1727, 1731 (2006) (internal quotation

marks omitted). That right, however, is not unbounded. Id.; see

also United States v. Wooten, 377 F.3d 1134, 1142-43 (10th Cir.

2004). “[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 the

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10

rule would usually require a prosecutor to be disqualified if he

or she were going to testify at trial, “[a] defendant must

establish a ‘compelling need’ before being allowed to call a

prosecutor as a trial witness.” United States v. Oreto, 37 F.3d

739, 746 (1st Cir. 1994); see also United States v. Ziesman, 409

F.3d 941, 950 (8th Cir. 2005). A compelling need cannot be shown

as long as other sources are available for the same evidence. 

See id.; United States v. Ashman, 979 F.2d 469, 494 (7th Cir.

1993); United States v. Bin Laden, 91 F. Supp. 2d 600, 623

(S.D.N.Y. 2000).

Poirier originally gave a statement to the Concord police

that did not implicate Reid in the Hess Express robbery. On

November 22, 2005, at a meeting that included Concord Police

Detective Daniel McDonald, Manchester Police Detective Eric

Beland, AUSA Helen Fitzgibbon, and AUSA Clyde Garrigan at the

office of the United States Attorney in Concord, Poirier, who was

accompanied by her lawyer, was interviewed by Detective McDonald. 

Poirier said that she did not tell the truth in her first

statement. She explained what had happened on the night of the

Hess Express robbery, including Reid’s plan to rob a store in

Concord to get money to buy more crack. She also described

Reid’s activities before he left her waiting in her car. 

AUSA Fitzgibbon states in her affidavit, filed in support of

the government’s objection to Reid’s motion for disqualification,

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that John Tuthill, an investigator with the United States

Attorney’s Office in Concord, met with Poirier on August 23,

2005, in Nashua and gave Fitzgibbon’s business card to Poirier. 

Soon after that meeting, Fitzgibbon states, Poirier called her

about arranging a future meeting. Poirier was indicted on

unrelated charges on September 7, 2005, and that case was handled

by another AUSA in the Concord office. Fitzgibbon provided a

“proffer letter,” dated November 22, 2005, which is addressed to

Poirier’s counsel, Richard Monteith, and which provides the terms

for the government’s use of any statement made by Poirier. 

Fitzgibbon also states that the meeting at which Poirier gave her

statement to the police and federal prosecutors, called a proffer

session, occurred on November 22, 2005.

Reid hopes to present evidence that the government induced

Poirier to change her story in exchange for leniency in the

pending criminal case against her. He appears to believe that

there are inconsistencies between Poirier’s version of the

chronology of her contacts with the government and Fitzgibbon’s

version. Poirier and her attorney both testified at Reid’s first

trial about the chronology and circumstances of Poirier’s

decision to recant. Reid states that he intends to call

Fitzgibbon to impeach Poirier’s testimony about those events. 

Other than to show that Poirier may remember some events

leading up to November 22, 2005, differently than Fitzgibbon, it

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is difficult to see the purpose of the testimony Reid is seeking. 

The minor discrepancies Reid cites do not appear to favor him and

do little to impeach Poirier’s credibility. Reid will again have

the opportunity to examine Poirier and her counsel about the

chronology and circumstances of Poirier’s decision to recant her

first statement. In addition, Reid will have the benefit of the

testimony given at the first trial. Further, Reid has not

explained why Tuthill is not available to testify about his

knowledge of those events. Therefore, Reid has not shown a

compelling need for Fitzgibbon’s testimony as part of his

defense. Absent that showing, no basis exists to allow him to

call the Assistant United States Attorney as a trial witness.

Conclusion

For the foregoing reasons, the defendant’s motions to

dismiss (documents no. 170 and 312) are denied. The defendant’s

motions for disqualification (documents no. 176 and 313) are also

denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 21, 2006

cc: Grodon Reid, pro se

Michael J. Iacopino, Esquire

Helen W. Fitzgibbon, Esquire

Clyde R. W. Garrigan, Esquire

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