Petition for Writ of Certiorari — Malcolm A. French, Petitioner v. United States
Supreme Court briefMar 6, 2021
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No.
____________________________
IN THE
SUPREME COURT OF THE UNITED STATES
____________________________
MALCOLM FRENCH,
PETITIONER
v.
UNITED STATES,
RESPONDENT
____________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals,
First Circuit
_____________________________
APPENDIX
_____________________________
Jamesa J. Drake
Drake Law LLC
P.O. Box 56
Auburn, ME 04212
(207) 330-5105
Counsel of Record
Thomas F. Hallett
Hallett, Whipple &
Weyrens
6 City Center, Suite 208
Portland, ME 04101
(207) 464-8066
INDEX OF APPENDICES
Appendix A: United States v. French, 977 F.3d 114 (1st Cir. 2020)………………....….1
Appendix B: Order of Court, dated November 20, 2020…………………………...……..9
Appendix C: Order on Motion for New Trial on Remand………………....……………..11
Appendix D: United States v. French, 904 F.3d 111 (1st Cir. 2018)…………....…….111
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977 F.3d 114 (2020)
UNITED STATES of America, Appellee,
v.
Malcolm A. FRENCH and Rodney Russell, Defendants, Appellants.
Nos. 19-1605, 19-1632.
United States Court of Appeals, First Circuit.
October 7, 2020.
Appeals from the United States District Court for the District of Maine, [Hon. John A. Woodcock, Jr., U.S. District Judge].
Jamesa J. Drake, Thomas F. Hallett, Hallett, Whipple & Weyrens, PA, and Drake Law, LLC on brief for appellant
Malcolm French.
William S. Maddox on brief for appellant Rodney Russell.
Halsey B. Frank, United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellee.
Before Lynch, Kayatta, Barron, Circuit Judges.
117
*117 KAYATTA, Circuit Judge.
Malcolm French and Rodney Russell sought a new trial after a jury found them guilty of charges arising out of a largescale marijuana-farming operation. They argued that one juror had lied in filling out the written questionnaire given to
prospective jurors prior to trial. Agreeing in part, we vacated the district court's order denying their request for a new trial
and remanded the case for further proceedings to investigate the alleged juror misconduct. United States v. French, 904
F.3d 111, 114, 125 (1st Cir. 2018). Following further proceedings on remand, the district court again denied the motion
for a new trial. French and Russell now appeal a second time, claiming that the district court improperly exercised its
discretion in fashioning a procedure to investigate the defendants' claims and in concluding that a new trial was not
warranted. For the following reasons, we reject the appeal and affirm the district court's order dismissing the defendants'
motion for a new trial.
I.
A.
French and Russell were charged after substantial marijuana-cultivation sites were found on French's property in
September 2009. As we recounted in the defendants' first appeal, French controlled some 80,000 acres of land in
Washington County, Maine, and employed Russell as an office manager for his logging business. French, 904 F.3d at
114. After an investigation by Maine law enforcement, a grand jury indicted both defendants for conspiring to
manufacture marijuana, manufacturing marijuana, maintaining drug-involved premises, harboring illegal aliens, and
conspiring to distribute and possess with intent to distribute marijuana. Id. A jury trial ensued. Numerous eyewitnesses
testified as to French and Russell's involvement in marijuana production, while both defendants testified and denied
culpability. After the jury convicted French and Russell on all counts, the district court sentenced French to 175 months'
imprisonment and Russell to 151 months' imprisonment. Id.
118
Soon after sentencing, defense counsel learned that Juror 86 — who sat on the jury in French and Russell's trial — has
a son who was a small-time marijuana dealer. Id. at 114-15. Upon receipt of this information, French's counsel
investigated and learned that the older of Juror 86's two sons had been convicted of marijuana *118 and other drugrelated offenses between 2002 and 2014. Counsel also learned that Juror 86 had visited her older son in jail on one
occasion and had paid legal fees arising out of his offenses on several others. Id. at 115.
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Juror 86 had not disclosed this information about her son's involvement in the criminal legal system on a questionnaire
that the Clerk's Office distributed to her when she was called for jury duty in October 2013, prior to jury selection.
Question 3 of the questionnaire read as follows:
a.) Please describe briefly any court matter in which you or a close family member were involved as a
plaintiff, defendant, witness, complaining witness or a victim. [Prospective jurors were given space to
write]
b.) Was the outcome satisfactory to you? [Prospective jurors were given "yes" and "no" check boxes
here]
c.) If no, please explain. [Prospective jurors were given space to write]
Id. (alterations in original). Juror 86 had written only "n/a" after part (a) and left parts (b) and (c) blank. She also had not
completed the second page of the questionnaire, which contained six additional prompts on other matters and directed
prospective jurors to sign and declare under penalty of perjury that they had answered all the questions truthfully and
completely. Id.
Nor had Juror 86 supplied the information about her son's criminal history in response to several questions posed to
prospective jurors by the magistrate judge during oral voir dire in January 2014, including the following question:
Now, as you've heard for a couple hours now this morning, this is a case about marijuana, which is a
controlled substance under federal law. Is there anyone on the jury panel who themselves personally or a
close family member has had any experiences involving controlled substances, illegal drugs, specifically
marijuana, that would affect your ability to be impartial?
And by any experiences, I'm talking about whether you or a close family member have been involved in a
situation involving substance abuse or involving treatment that — maybe professionally treating that
condition, or being the victim of a crime involving those substances, or being the perpetrator of a crime
where someone alleged those substances were involved. Any ... experiences regarding illegal drugs, and
specifically marijuana, but any illegal drug, controlled substance under federal law, is there anyone who's
had that sort of experience?
Id. (alteration in original).[1]
119
In first moving for a new trial in the spring of 2016, the defendants argued that Juror 86's responses to the questionnaire
and her lack of response to the oral voir dire questions were dishonest. Id. at 116, 120. They maintained that if Juror 86
had answered these questions honestly, the court likely would have stricken her for cause. In addition to seeking a new
trial, the defendants requested an evidentiary hearing to question Juror 86 about her *119 responses. Id. at 116. The
district court denied the defendants' motion for a new trial in November of 2016, finding Juror 86's answers, or lack
thereof, insufficient to compel a new trial or an evidentiary hearing. Order Denying Motion for New Trial at 24-25, 43-44,
United States v. French, No. 12-cr-00160-JAW (D. Me. Nov. 16, 2016), ECF No. 734.
On appeal, we found that the allegations of Juror 86's bias presented a "colorable or plausible" claim of the type of juror
misconduct that might require a new trial. French, 904 F.3d at 120. However, because the record as it then stood did not
indicate why Juror 86 answered as she did, we could not definitively determine whether she was unduly biased. Id. at
118. We therefore vacated the district court's denial of the defendants' motion and remanded for further proceedings on
the motion for a new trial. Id. at 125.
B.
On remand, the district court held an evidentiary hearing to resolve the two questions on which the new-trial motion
depends: "(1) did Juror 86 fail to honestly answer a material question; and (2) would a correct response have provided a
basis for a challenge for cause"? Prior to the hearing, the district court twice met with counsel to discuss what
procedures to adopt to investigate the allegations of Juror 86's bias. The parties shared views on issues such as how to
approach Juror 86, the likelihood that she would invoke her Fifth Amendment rights, whether the Court should appoint
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counsel to represent her, and whether the Court or counsel should do the questioning at the hearing. Over the
defendants' objections, the district court appointed the Federal Defender for the District of Maine, Attorney David
Beneman, to represent Juror 86 at the evidentiary hearing. The district court also decided that, contrary to the
government's preference, it would not ask Juror 86 questions from the bench during the hearing. Instead, the district
court ruled that Attorney Beneman would perform a direct examination of Juror 86, followed by cross-examination by the
government and counsel for the defendants, notwithstanding the defendants' argument that they should be allowed to
question Juror 86 first because they had the burden of proof.
During the evidentiary hearing held on February 1, 2019, the parties stipulated to the relevant criminal record of Juror
86's older son. Most notably for our purposes, that record included: a 2002 state-court charge for unlawful furnishing of
marijuana (which led to a misdemeanor conviction for unlawful possession of marijuana); a 2005 state-court charge for
unlawful furnishing of cocaine (which led to a misdemeanor conviction for possession of cocaine); and a 2011 statecourt misdemeanor conviction for unlawful possession of marijuana. Counsel further stipulated that when prospective
jurors are contacted by the Clerk's Office and complete the relevant jury selection questionnaires, they do not know
whether they are being called for a civil case or a criminal case. Several exhibits were admitted, including copies of
three personal checks made out by Juror 86 in 2010 to a lawyer in relation to services provided to her older son; a
record that Juror 86 visited her older son at the Kennebec County Jail in October 2003; and a petition referencing a
juvenile proceeding in which Juror 86's older son was charged with theft and forgery in 2001.
120
The evidentiary hearing lasted for approximately two and a half hours. On direct examination, Juror 86 testified that she
did not recall filling out the questionnaire in the fall of 2013 and that looking at the forms did not refresh her memory.
*120 Juror 86 nonetheless agreed that the handwriting was hers. Regarding Question 3(a), which asked her to describe
"any court matter in which you or a close family member were involved," she said that her answer ("n/a") was correct
because it meant "not applicable." She nevertheless agreed that she had herself gone to court on two occasions: once
as a witness in a matter concerning her sister's negligent parenting, and once when she was divorced. She further
testified that her current husband had also gone to court for a divorce with a prior spouse and for an operating under the
influence charge. As for her two sons, Juror 86 testified that her younger son had been to court on charges for speeding,
possession of tobacco by a minor, and possession of a "small amount of pot," and she believed that she had
accompanied him on some or all occasions. Juror 86 also admitted that her older son had gone to court, that she had
visited him at Kennebec County Jail, and that she had written checks to a lawyer to pay for his legal services. However,
she indicated that she did not specifically know why her older son had hired a lawyer or what he was charged with.
On cross-examination by defense counsel, Juror 86 maintained that she did not include this information about her family
members' involvement with the legal system on the questionnaire because she "did not think it was relevant." Despite
visiting her older son in jail, Juror 86 stated that she had not known the nature of the charges against him and only
learned that they had involved marijuana during conversations with Attorney Beneman in advance of the evidentiary
hearing. She explained that she "remember[ed] he was pulled over," but that "he never talked to [her] about it." When
prompted about her presence at a juvenile proceeding, Juror 86 recalled that she reported one of her sons to the police
after he forged one of her checks and stole from her in 2001, but that she did not recall what legal proceedings resulted.
With respect to the oral questions posed by the magistrate judge as part of the voir dire process exploring matters "that
would affect [potential jurors'] ability to be impartial," Juror 86 testified on direct examination that she did not remember
answering the question of whether she or a close family member had had any experiences with controlled substances,
particularly marijuana. She further stated that she thought that the question "did not pertain to [her]" because she
"stay[s] neutral" and "do[esn't] form judgments prior to knowing the full story." She added that her sons' involvement in
matters concerning marijuana would not have affected her ability to be impartial. As to the question posed by the
magistrate judge of whether anyone on the jury panel had strong beliefs about the legalization of marijuana that would
interfere with the juror's ability to be fair and impartial, Juror 86 did not recall responding, but suggested she would not
have responded because she "did not have an opinion either way" that would have impeded her ability to be impartial.
As to a final question posed by the magistrate judge — whether there was anything that would have interfered with the
prospective juror's ability to be a fair and impartial juror in the case — Juror 86 indicated that she felt that she could be
fair and impartial, and that she still believed that to be the case.
121
On cross-examination by the government, Juror 86 denied that she had sought to hide or provide false information in
her answers to Question 3(a) and the questions posed by the magistrate judge. She indicated that she had only a
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limited knowledge of her sons' interactions with the legal system and stated that she did not have a strong desire to be
either on or off *121 a jury or any bias or animosity against people accused of drug crimes, including people accused of
growing marijuana.[2]
Following the evidentiary hearing, French and Russell filed renewed motions for a new trial. The district court denied the
motions. Despite finding that Juror 86 "failed to honestly answer a material question on voir dire" by not disclosing
numerous court proceedings involving herself and her close family members, including several involving controlled
substances, the court concluded that Juror 86 would have been able to separate her emotions from her duties as a juror
and that she would not have been stricken for cause by a reasonable judge had she honestly answered the questions
posed. Considering the factors discussed in Sampson v. United States, 724 F.3d 150, 165-66 (1st Cir. 2013), the court
reasoned that: (1) Juror 86 withheld information about herself and about close family members — her sons and her
husband — which weighed in favor of the defendants; (2) Juror 86 was "unemotional" and "calm," a factor favoring the
government; (3) although most of the charges against Juror 86's sons were distinct from the charges against French
and Russell, the similarity of the older son's marijuana trafficking charge slightly favored the defendants; (4) the scope
and severity of the inaccuracies slightly favored the government; and (5) no answer had been found as to "why Juror 86
failed to accurately and honestly answer Question 3 in October 2013, why she did not reveal this information during voir
dire in January 2014, [or] why she testified in such a contradictory and confusing manner in February 2019." All
together, the court concluded that "if the Magistrate Judge and counsel had been made aware of Juror 86's sons'
marijuana convictions, the convictions would not have provided a valid basis for a challenge for cause." The court
therefore denied the motion for a new trial, and this second appeal followed.
II.
"[W]e review claims that a trial court failed to conduct an appropriate inquiry into allegations of jury taint for abuse of
discretion." United States v. Paniagua-Ramos, 251 F.3d 242, 249 (1st Cir. 2001) (citing United States v. Boylan, 898
F.2d 230, 258 (1st Cir. 1990)). Likewise, "[w]e review a district court's denial of a motion for new trial for abuse of
discretion." Id. (citing United States v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999)).
A.
The first of the two questions before us is whether the district court abused its discretion in fashioning and executing a
procedure on remand to investigate the defendants' allegations of juror bias. After careful review, we conclude that it did
not.
122
On their first appeal, we held that French and Russell had raised "colorable or plausible" allegations of Juror 86's bias in
the district court, French, 904 F.3d at 120, and thus that a "court-supervised investigation aimed at confirming and then
exploring further the apparent dishonesty was called for," id. at 117. When investigating allegations of juror bias, the
"primary obligation" of the district court "is to fashion a responsible procedure *122 for ascertaining whether misconduct
actually occurred and if so, whether it was prejudicial." Id. (quoting United States v. Zimny, 846 F.3d 458, 465 (1st Cir.
2017)); see also United States v. Rodriguez, 675 F.3d 48, 58 (1st Cir. 2012); Paniagua-Ramos, 251 F.3d at 249-50
(explaining that the district court must select "a sensible procedure reasonably calculated to determine whether
something untoward had occurred" and then "even-handedly implement" it). The aim of such a procedure is "to ensure
that the parties `receive[] the trial by an unbiased jury to which the Constitution entitles them.'" United States v. BristolMártir, 570 F.3d 29, 42 (1st Cir. 2009) (alteration in original) (quoting Boylan, 898 F.2d at 289-90). However, in meeting
this obligation, "[t]he type of investigation the district court chooses to conduct is within [its] discretion." French, 904 F.3d
at 117. Because "claims of jury taint are almost always case-specific," Paniagua-Ramos, 251 F.3d at 250, the district
court takes responsibility for appropriately calibrating its inquiry to the circumstances presented. See Rodriguez, 675
F.3d at 61 (explaining that "the circumstances of each case ... will determine the level of inquiry necessary").
"The touchstone" of our appellate review is "reasonableness." Paniagua-Ramos, 251 F.3d at 249. "So long as the district
judge erects, and employs, a suitable framework for investigating the allegation and gauging its effects, and thereafter
spells out [her] findings with adequate specificity to permit informed appellate review, [the court's] `determination ...
deserves great respect [and] ... should not be disturbed in the absence of a patent abuse of discretion.'" Boylan, 898
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F.2d at 258 (third alteration in original) (citation omitted) (quoting United States v. Hunnewell, 891 F.2d 955, 961 (1st Cir.
1989)); see also Zimny, 846 F.3d at 472 (explaining that the case law in this circuit "emphasize[s] the district court's
discretion in determining `the scope of the resulting inquiry and the mode and manner in which it will be conducted'"
(quoting Paniagua-Ramos, 251 F.3d at 250)).
In this case, the district court responded to the gravity of the defendants' claims of bias with a formal evidentiary hearing
— the gold standard for an inquiry into alleged juror misconduct. Cf. French, 904 F.3d at 117. While we have not
required that district courts always implement a full evidentiary proceeding in response to an allegation of juror bias, in
some circumstances a formal hearing may be required. Id. The fact that juror bias constitutes a structural defect "not
susceptible to harmlessness analysis," id. at 119, along with the difficulties inherent in questioning a juror several years
after the end of trial, further rendered the district court's response appropriate.
Additionally, the procedures that the district court adopted and implemented for the evidentiary hearing were rigorous
and well thought-out. During the hearing, Juror 86 testified at length under oath, and all parties were permitted to be
present throughout the questioning and to cross-examine Juror 86. The district court afforded wide latitude to counsel in
asking questions at the hearing and admitted evidence and stipulations. This is not a situation where the court simply let
the juror decide for herself whether she was biased without investigating further. Contra United States v. Rhodes, 556
F.2d 599, 601 (1st Cir. 1977).
The defendants nonetheless contend that the court abused its discretion in fashioning procedures to investigate Juror
86's alleged bias. Russell challenges the court's decision to appoint counsel for Juror 86, and both defendants object to
123
the court's decision not to question Juror 86 from the *123 bench.[3] Neither of these contentions persuades us.
1.
The defendants point to no case holding that a court investigating juror bias or misconduct may not appoint counsel for
the juror. And we know of at least one reported case in which another district court appointed counsel for a juror. See
United States v. Lawson, 677 F.3d 629, 640 n.13 (4th Cir. 2012). Appointing counsel for Juror 86 posed advantages and
disadvantages for the court's inquiry. On the one hand, it may have increased the likelihood that the juror would take the
inquiry seriously and would refresh her memory before showing up at the courthouse (as, indeed, she did). On the other
hand, it might have made her responses more guarded. Additionally, appointing counsel mitigated the potential
consequences of the court's inquiry for Juror 86 herself, including the possibility of contempt sanctions and the potential
financial burden of having to retain counsel independently. These considerations, among others, call for judgment and
discretion, not a rule of law. Further, nothing in Juror 86's actual testimony suggests that the investigation into her bias
would have gone differently if the court had not appointed counsel. Thus, we have no basis for finding that the district
court abused its discretion in choosing a "methodologically sound" means of investigating juror bias. See United States
v. Bradshaw, 281 F.3d 278, 291 (1st Cir. 2002).
2.
Nor do we find any abuse of discretion in the district court's decision to rely on direct- and cross-examination by counsel
rather than questioning Juror 86 from the bench. The appropriateness of questioning witnesses or jurors from the bench
varies depending on the circumstances. For example, while judges are permitted to ask questions at trial, see Fed. R.
Evid. 614, such questioning is not always beneficial because it can give rise to claims of favoritism and taint jurors'
perceptions of a judge's impartiality, see, e.g., United States v. Rivera-Rodríguez, 761 F.3d 105, 111 (1st Cir. 2014). By
contrast, it is sometimes preferable for judges to question potential jurors from the bench during voir dire, see Fed. R.
Crim. P. 24(a), so that counsel may avoid making potential jurors uncomfortable and thereby avoid the risk of prejudicing
their clients before trial even begins.
Post-trial examinations of a juror present different practicalities. For example, sometimes the focus of the examination is
obvious, making it most practical for the court to simply ask what it needs to know. See, e.g., Zimny, 846 F.3d at 465-66;
Paniagua-Ramos, 251 F.3d at 249-50; Tavares v. Holbrook, 779 F.2d 1, 2-3 (1st Cir. 1985). On other occasions, such as
in the circumstances presented in this case, protracted and far-ranging inquiry may be required, making it less practical
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for the judge to direct the questioning. Further, counsel need not be as hesitant to interrogate a juror post-trial as they
might have been pre-trial because there is little to no risk that annoying the juror will prejudice their clients. Thus, we see
no obvious reason why competing post-trial examinations of a juror by counsel would be insufficient to reveal any bias
held by that juror.
124
Against this background of alternative approaches that can be tailored to the *124 needs of the specific case, our
standard of review does not call on us to second-guess the district court's decision to have competent counsel alone do
the questioning. See Paniagua-Ramos, 251 F.3d at 250 (declining "to second-guess the lower court's judgment as to
what methodology was best calculated to get at the truth in this instance"); United States v. Ortiz-Arrigoitia, 996 F.2d
436, 443 (1st Cir. 1993) ("The trial judge is not ... shackled to a rigid and unyielding set [of] rules and procedures that
compel any particular form or scope of inquiry.").
Our decision in Bristol-Mártir, 570 F.3d at 43, is not to the contrary. In that case, we found an abuse of discretion
because the jurors had not been questioned at all — by the court or counsel — as to whether they were unduly
influenced by one juror's presentation of improper outside research. Id. Bristol-Mártir does not suggest that the district
court must always conduct the questioning. The defendants also point to Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998),
where the Ninth Circuit admonished the trial court of its "independent responsibility to satisfy [itself] that [an] allegation of
bias is unfounded." Id. at 978. Dyer, though, involved a situation where defense counsel were not themselves in a
position to aggressively question the juror, as the trial was still underway. Id.
Russell's reliance on United States v. Resko, 3 F.3d 684 (3d Cir. 1993), does not help his position either. There, the only
effort made by the district court to investigate the claims of juror misconduct was to distribute a questionnaire asking
jurors whether they had talked to other jurors during the trial and whether they had formed an opinion as to guilt
because of those conversations. Id. at 688, 690. Neither the district court nor counsel engaged in individualized
questioning of the jurors, and the responses to the questionnaire supplied insufficient information to rout out any
potential prejudice. Id. at 690-91.
In sum, the questioning undertaken by counsel was sufficient to address the defendants' concerns of Juror 86's bias.
Indeed, the defendants complain of no question that they were not allowed to ask Juror 86. Accordingly, we find no
abuse of discretion by the district court in adopting and implementing procedures to investigate the claims of juror bias
on remand.
B.
Turning to the defendants' substantive argument that the district court erred in denying the motion for new trial, we again
find no abuse of discretion warranting a new trial.
"To obtain a new trial based on a juror's failure to respond accurately to questions asked of prospective jurors prior to
their selection to sit as jurors, `a [defendant] must first demonstrate that a juror failed to answer honestly a material
question on voir dire.'" French, 904 F.3d at 116 (emphasis omitted) (quoting McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984)). Second, the defendant must "further show that
a correct response would have provided a valid basis for a challenge for cause." Id. (quoting McDonough, 464 U.S. at
556, 104 S.Ct. 845). The party seeking to overturn the jury's verdict bears the "burden of showing the requisite level of
bias by a preponderance of the evidence." Sampson, 724 F.3d at 166.
125
The second element — whether a correct response would have given rise to a valid basis for a challenge for cause —
depends on whether "a reasonable judge, armed with the information that the dishonest juror failed to disclose and the
reason behind the juror's dishonesty, would conclude ... that the juror lacked the *125 capacity and the will to decide the
case based on the evidence." Id. at 165-66. This inquiry is both context-specific and fact-specific and must be based on
the "totality of the circumstances," including: "the juror's interpersonal relationships; the juror's ability to separate her
emotions from her duties; the similarity between the juror's experiences and important facts presented at trial; the scope
and severity of the juror's dishonesty; and the juror's motive for lying." Id. (citations omitted).
The information about Juror 86's sons' involvement with marijuana use and sales was plainly material to this case
(although she could not have known that when she deemed it "not applicable"). It might have engendered strong
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emotions that would cause her to perform poorly as a juror. It might have made her sympathetic to defendants charged
with marijuana usage. Or it might have made her angry at someone who manufactured marijuana. For these reasons,
we previously concluded that Juror 86's dishonest conduct raised a "colorable or plausible" claim of the type of bias that
could warrant a new trial. French, 904 F.3d at 120. Thus, an investigation of the facts was necessary. See id.
That investigation let much of the air out of the balloon. No connection between Juror 86's sons and the defendants was
shown. The charges against her sons, while involving illegal drugs, bore little relationship to the large-scale
manufacturing operation that the defendants were charged with running. Juror 86 offered no hint that she held either the
defendants or the government responsible for her sons' circumstances. Further, none of the drug crimes involved Juror
86 herself. In the judgment of the experienced trial judge who watched her testify for over two hours, she displayed no
strong emotions that may have fueled a bias. And there is no suggestion in the record that she lied to get on the jury in
this case.
The defendants place great emphasis on the fact that the district court ultimately could not determine exactly why Juror
86 filled out her questionnaire inaccurately or failed to respond to the relevant questions posed during oral voir dire. But
the court did exclude the explanations that would most likely cause concern. Juror 86 was not a habitual liar; she did not
employ deceit in order to get on the jury in this case; and her conduct was not the product of undue emotion. Further, as
noted above, Juror 86 was not a party to any criminal charges, and her sons had no apparent connection with anyone
involved in this case. While not exhaustive, these findings left no likely explanation that would reveal any disqualifying
bias toward either the defendants or the government.
Moreover, Juror 86 testified that she had possessed limited information about the specifics of her sons' charges. Juror
86 had herself smoked marijuana in the distant past, indicated that she lacked strong opinions about the legalization of
marijuana, and reiterated that her sons' marijuana use did not particularly concern her. By contrast, the juror whose bias
led us to vacate a death penalty in Sampson expressed that she was "deeply ashamed" about her daughter's
conviction. 724 F.3d at 168; see also id. at 167 (observing that the juror "could not discuss those matters candidly,
unemotionally or, often, coherently" (quoting United States v. Sampson, 820 F. Supp. 2d 151, 193 (D. Mass. 2011))).
126
Russell's reference to the example of Juror 10, who was excused for cause by the magistrate judge based on her
answers to the juror questionnaire, does not change the result. Like the juror in Sampson, and unlike Juror 86, Juror 10
had been "clearly emotional" about her son's marijuana charges. Although the defendants suggest *126 that Juror 86
was unemotional because her counsel had coached her on how to appear "calm," this assertion is speculative and
therefore does not disturb the experienced trial judge's determination that Juror 86 was "remarkably unemotional."
Of course, the "reason behind the juror's dishonesty" is important when considering whether a reasonable judge would
strike the juror for cause. French, 904 F.3d at 118 (quoting Sampson, 724 F.3d at 165-66). But not all motives are
equally alarming. As the Supreme Court has explained, while "motives for concealing information may vary, ... only
those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." McDonough, 464 U.S. at
556, 104 S.Ct. 845. Here, the testimony elicited at the evidentiary hearing and the district court's findings eliminated the
motives that usually tend to show bias, and there is no suggestion in the record that Juror 86 had some other motive
that would cast doubt on her impartiality. We simply have a juror who, as she explained, decided that the information
about her family was "not applicable." Although the reasons why she felt that way remain unclear, the lack of clarity, by
itself, does not dictate a finding that she possessed a disqualifying bias. Indeed, we see in the record little if any
evidence that Juror 86 was biased in any way adverse to the defendants.
The defendants assert that Juror 86's memory loss caused the lack of clarity and that the burden should therefore be
shifted from them to the government, citing to the following cautionary language in French:
If the staleness of the memories resulting from t[he] additional two-year period [of delay between the
defendants' filing of a motion for new trial and our decision in French] becomes a problem that cannot be
solved on remand, we think it only fair for that to cut against the government.
904 F.3d at 120. But the district court supportably concluded that the record lacked evidence of any lapse in Juror 86's
memory caused by the two-year delay. The defendants object that the district court should have held any and all lapses
in Juror 86's memory against the government — including memory lapses resulting from the earlier period of time
between jury selection and their first motion for a new trial, as well as memory lapses resulting from the later period of
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time between our decision in French and the evidentiary hearing on remand. But this argument overlooks the general
rule that the party seeking to overturn the jury's verdict bears the "burden of showing the requisite level of bias by a
preponderance of the evidence." Sampson, 724 F.3d at 166. Although our decision in French noted that an exception to
the general rule might apply if Juror 86's memory loss became "a problem that [could not] be solved on remand," 904
F.3d at 120, that possibility did not come to pass. To the contrary, as we have already explained, the district court was
able to exclude the most obvious indicators of bias from the evidence that was in the record. And, with those most
concerning motivations excluded, the defendants failed to posit any other concerning motive that might explain the
juror's conduct but that the passage of time prevented them from uncovering.
127
The fact that a prospective juror has a family member who has run afoul of laws against drug possession does not by
itself disqualify a juror from sitting on a jury in a case like this. Rather, it invites further inquiry to see if the family
member's experience has likely affected the ability of the prospective juror to be fair. In this instance, that follow-up
inquiry was doubly warranted because Juror 86 initially withheld *127 reporting her sons' experiences. That withholding
suggested that she might have had strong feelings one way or the other concerning criminal prosecutions relating to
marijuana. As we have described, the district court conducted that inquiry. In addition to confirming that the experiences
Juror 86 omitted were not her own, the district court's inquiry turned up significant facts that were not known at the time
of the defendants' first appeal: It revealed that the experiences of Juror 86's family members were quite different from
those of the defendants; that Juror 86 was not especially emotional about the subject; and that any inference of any bias
adverse to defendants was weak. Although the inquiry did not illuminate the exact reason for Juror 86's dishonest
conduct, it also did not yield any evidence that her dishonesty was motivated by bias or that the facts she had concealed
would have otherwise affected her ability or desire to be impartial. Based on this information, and after observing Juror
86 testify for roughly two hours, the experienced trial judge found that she lacked the type of bias that would disqualify
her for cause.[4] We hold, simply, that the trial judge did not abuse his discretion in making that determination.
III.
Based on the foregoing, we affirm the district court's denial of the defendants' motion for a new trial.
[1] Juror 86 also did not respond to another question posed by the magistrate judge:
Is there anyone here who knows of any other reason, some question I haven't asked or something that's been sitting there troubling
you, why hasn't she asked me about this, those attorneys, those people should know about this fact and it might interfere with me
being a fair and impartial juror or it might appear that it would interfere, is there any other fact that you feel would affect in any way your
ability to be a fair and impartial juror?
French, 904 F.3d at 115.
[2] Counsel for French also called Juror 86's husband to testify and asked whether he was aware that Juror 86's older son had been
arrested for marijuana. He indicated that he was, but that he could not remember exactly when the arrest took place.
In addition, French's counsel called Dr. Charles Robinson, a forensic psychologist and expert in memory, who suggested that Question
3(a) was of the sort that would normally trigger memories of earlier interactions with the court system.
[3] Russell also argues that the district court improperly "elevat[ed] `motive' to be a sine qua non [of] proving reversible bias or a valid
basis for cause." We address this argument as part of our discussion of the defendants' substantive arguments in Part II.
[4] Accordingly, we reject Russell's argument that the district court improperly elevated motive to be a "sine qua non" of proving
reversible bias. Similarly, we are not persuaded that the evidence other than the evidence of motive tilted toward disqualification.
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Case: 19-1605
Document: 00117671351
Page: 1
Date Filed: 11/20/2020
Entry ID: 6383156
United States Court of Appeals
For the First Circuit
______________________________
No. 19-1605
UNITED STATES
Appellee
v.
RODNEY RUSSELL, a/k/a Rod
Defendant - Appellant
___________________________
No. 19-1632
UNITED STATES
Appellee
v.
MALCOLM A. FRENCH
Defendant - Appellant
_______________________________
Before
Howard, Chief Judge,
Lynch, Thompson, Kayatta and Barron,
Circuit Judges.
___________________________
ORDER OF COURT
Entered: November 20, 2020
The petition for rehearing having been denied by the panel of judges who decided the case,
and the petition for rehearing en banc having been submitted to the active judges of this court and
a majority of the judges not having voted that the case be heard en banc, it is ordered that the
petition for rehearing and the petition for rehearing en banc be denied.
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Case: 19-1605
Document: 00117671351
Page: 2
Date Filed: 11/20/2020
By the Court:
Maria R. Hamilton, Clerk
cc:
William Stuart Maddox
Rodney Russell
Frank Todd Lowell
Joel B. Casey
Donald E. Clark
Julia M. Lipez
David R. Beneman
Thomas F. Hallett
Jamesa J. Drake
Malcolm A. French
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Entry ID: 6383156
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904 F.3d 111 (2018)
UNITED STATES of America, Appellee,
v.
Malcolm FRENCH and Rodney Russell, Defendants, Appellants.
Nos. 16-2386, 16-2392.
United States Court of Appeals, First Circuit.
September 17, 2018.
Appeals from the United States District Court for the District of Maine, [Hon. John A. Woodcock, Jr., U.S. District Judge].
Jamesa J. Drake, Auburn, ME, with whom Benjamin Donahue, Thomas Hallett, Hallett, Zerillo & Whipple, PA, Portland,
ME, and Drake Law, LLC were on brief, for appellant Malcolm French.
William S. Maddox, Rockland, ME, for appellant Rodney Russell.
Renée M. Bunker, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief,
for appellee.
Before THOMPSON, SELYA, and KAYATTA, Circuit Judges.
113
114
*113KAYATTA, Circuit Judge.
After their convictions on charges arising out of a large-scale marijuana-farming operation, Rodney Russell and Malcolm
French sought a new trial based on claims *114 that one juror lied in filling out the written questionnaire given to all
prospective jurors prior to trial, and that a second juror lied in voir dire. As we will explain, we agree that the district
court's investigation concerning the answers given by one of the jurors was inadequate, so we vacate its denial of the
defendants' motion for a new trial. We otherwise reject the defendants' various other challenges to their convictions and
sentences.
I.
Malcolm French first entered the logging business as a college student, contracting with landowners to cut down trees.
He grew the business, first hiring his own crew, and then buying land of his own. By 2009, French — either personally or
through various companies he controlled — owned approximately 80,000 acres of land, including an area in Washington
County, Maine, known as Township 37. French employed co-defendant Rodney Russell as an office manager of sorts,
keeping the books for his businesses, writing company checks, and using a company credit card.
In September 2009, Maine law enforcement discovered a series of substantial marijuana-cultivation sites on French's
Township 37 property. Following an investigation, a grand jury indicted Russell and French for conspiring to manufacture
marijuana, manufacturing marijuana, maintaining drug-involved premises, harboring illegal aliens, and conspiring to
distribute and possess with intent to distribute marijuana. At trial, numerous eyewitnesses described the direct
involvement of Russell and French in the marijuana production. According to those witnesses, French hired one witness
to recruit migrant workers to clean the product, and both French and Russell handled incoming payments from
marijuana sales and sold the crop. The property contained shacks for drying the crop. And one witness explained how
workers grew marijuana in wire baskets containing a fertilizer called Pro-Mix that was purchased either through a credit
card in French's name or by Russell, via check or cash.
French and Russell both testified in their own defense, denying culpability. French testified that he had previously
discovered marijuana elsewhere on his property and called a warden, but the warden did nothing, and as a result, he
chose not to alert authorities when he discovered other growing operations. Asked to explain his large purchase of the
Pro-Mix fertilizer, he testified that after a man named Steve Benson (who testified as part of French's case-in-chief)
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inadvertently destroyed some marijuana, the putative owners of that marijuana, "the Red Patch gang," demanded
reimbursement, which Russell gave in the form of a large amount of Pro-Mix. Evidently unpersuaded, the jury convicted
French and Russell on all counts. Eventually, the district court sentenced Russell to 151 months' imprisonment and
French to 175 months' imprisonment. Transcript of Sentencing Proceedings at 135, 139, United States v. French, No.
12-cr-00160-JAW (D. Me. Nov. 10, 2016), ECF No. 729 [hereinafter "Transcript of Sentencing Proceedings"]. They now
appeal both their convictions and their sentences.
II.
We consider first the appeal from the district court's denial of a motion for a new trial based on the alleged bias of Juror
86.
A.
115
Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset
*115 County Jail with co-defendant Kendall Chase told Chase that Juror 86, who sat on the jury before which the case
was tried, was the mother of a small-time marijuana trafficker. After Chase told French, French's counsel investigated
Chase's report. They learned that Juror 86's son had indeed been convicted of marijuana and other drug-related
offenses multiple times between 2002 and 2014 arising out of his use and sale of marijuana and cocaine. At one point,
Juror 86 visited her son in jail. She also paid the legal fees arising out of his offenses on multiple occasions.
The government does not challenge the accuracy of this information concerning Juror 86, none of which had been
disclosed by Juror 86 in response to questions asked of her during the jury selection process. As part of that process,
prospective jurors filled out a questionnaire, which included the following prompt:
3. a.) Please describe briefly any court matter in which you or a close family member were involved as a
plaintiff, defendant, witness, complaining witness or a victim. [Prospective jurors were given space to
write]
b.) Was the outcome satisfactory to you? [Prospective jurors were given "yes" and "no" check boxes
here]
c) If no, please explain. [Prospective jurors were given space to write]
Order Denying Motion for New Trial at 4, United States v. French, No. 12-cr-00160-JAW (D. Me. Nov. 16, 2016), ECF
No. 734 [hereinafter "Order Denying Motion for New Trial"]. Juror 86 wrote "n/a" after part (a), and left parts (b) and (c)
blank. She also did not complete the second page of the questionnaire, which contained six additional prompts and a
space to sign and declare under penalty of perjury that the prospective juror had answered all the questions truthfully
and completely.
When jury selection began, the magistrate judge asked the following of the prospective jurors:
Now, as you've heard for a couple hours now this morning, this is a case about marijuana, which is a
controlled substance under federal law. Is there anyone on the jury panel who themselves personally or a
close family member has had any experiences involving controlled substances, illegal drugs, specifically
marijuana, that would affect your ability to be impartial?
And by any experiences, I'm talking about whether you or a close family member have been involved in a
situation involving substance abuse or involving treatment that — maybe professionally treating that
condition, or being the victim of a crime involving those substances, or being the perpetrator of a crime
where someone alleged those substances were involved. Any ... experiences regarding illegal drugs, and
specifically marijuana, but any illegal drug, controlled substance under federal law, is there anyone who's
had that sort of experience?
Id. at 5-6. Juror 86 did not respond to this question. Later in the process, the magistrate judge asked:
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Is there anyone here who knows of any other reason, some question I haven't asked or something that's
been sitting there troubling you, why hasn't she asked me about this, those attorneys, those people
should know about this fact and it might interfere with me being a fair and impartial juror or it might
appear that it would interfere, is there any other fact that you feel would affect in any way your ability to
be a fair and impartial juror?
Id. at 6. Again, Juror 86 was silent.
116
In a motion for a new trial filed a week after sentencing, defendants argued that *116 Juror 86's answers to the
questionnaire and her lack of a response to oral voir dire questions amounted to dishonest answers to material
questions, and that had the answers been honest, there would have been a valid basis for a challenge for cause. They
also asked for an evidentiary hearing to question Juror 86 about her answers.
Just over six months later, the district court denied the motion in a written order. It first surveyed the possible meanings
of "n/a" as well as the term "court matter" in the questionnaire, and also noted that it did not know "what exactly Juror 86
was thinking when she wrote `n/a' because defense counsel did not seek to question her during voir dire." Id. at 21-23. It
went on to state that "[w]ith these ambiguities, the Court concludes that the Defendants have not demonstrated that
Juror 86 failed to answer honestly a material voir dire question." Id. at 23 (internal quotations omitted). At the same time,
the district court concluded that the response to the questionnaire was "likely mistaken" and that "the question as to
whether any close family member — her son obviously qualifies — was involved in any court matter should have elicited
a response from Juror 86 that alerted the magistrate judge and the attorneys... about her son's involvement with court
matters." Id. at 23-24. The district court stated, however, that because this was mere mistake, and not dishonesty, a new
trial was unwarranted absent a more flagrant showing of juror bias. Id. at 24-25. The district court also held that defense
counsel's failure to inquire further of Juror 86 based on her obviously incomplete questionnaire precluded defendants
from relying on the questionnaire to claim juror misconduct. Id. at 29-30. The district court found Juror 86's non-answers
to the oral voir dire questions similarly inconsequential. Noting that the oral question, by its terms, only asked for
information that in the juror's opinion affected her ability to be impartial, it reasoned that Juror 86 might well have known
of her son's criminal matters but felt that they did not affect her ability to be impartial, and thus, a non-answer at oral voir
dire was appropriate. Id. at 32-36.
The district court also concluded that defendants had failed to demonstrate that truthful answers would have offered a
valid basis for a challenge for cause. Id. at 36-42. Finally, the district court found that the passage of two years from the
close of the trial cut against any request for an evidentiary hearing. Id. at 44-50.
B.
117
To obtain a new trial based on a juror's failure to respond accurately to questions asked of prospective jurors prior to
their selection to sit as jurors, "a party must first demonstrate that a juror failed to answer honestly a material question
on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause."
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (emphasis in
original). "The outcome of this inquiry depends on whether a reasonable judge, armed with the information that the
dishonest juror failed to disclose and the reason behind the juror's dishonesty, would [have struck the juror for cause]."
Sampson v. United States, 724 F.3d 150, 165-66 (1st Cir.2013) (emphasis added). In evaluating the juror's "capacity and
... will to decide the case solely on the evidence," id. at 166, the court may consider factors including but not limited to
"the juror's interpersonal relationships; the juror's ability to separate her emotions from her duties; the similarity between
the juror's experiences and important facts presented at trial; the *117 scope and severity of the juror's dishonesty; and
the juror's motive for lying." Id. (citations omitted).
Separate and apart from the showing that a defendant must make to obtain a new trial in such cases, there is the
question of process. Specifically, to what extent should the district court allow or conduct an investigation into an
allegation of juror misconduct? Given the important interest in the finality of trial, trial courts should not accommodate
fishing expeditions after a verdict has been rendered, especially years after the fact, conducted in the hope of
establishing a toehold for a misconduct claim. See, e.g., Neron v. Tierney, 841 F.2d 1197, 1205 (1st Cir.1988) ("[C]ourts
generally should be hesitant to haul jurors in after they have reached a verdict to probe for potential instances of bias,
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misconduct, or extraneous influences." (alterations and internal quotation marks omitted)). At the same time, we have
said that defendants seeking to establish juror misconduct bear an initial burden only of coming forward with a
"colorable or plausible" claim. United States v. Zimny, 846 F.3d 458, 464 (1st Cir.2017). Once defendants have met this
burden, an "unflagging duty" falls to the district court to investigate the claim. Id. (quoting United States v. PaniaguaRamos, 251 F.3d 242, 250 (1st Cir.2001)). The type of investigation the district court chooses to conduct is within the
district court's discretion; it may hold a formal evidentiary hearing, but depending on the circumstances, such a hearing
may not be required. Id. at 465. "[T]he court's primary obligation is to fashion a responsible procedure for ascertaining
whether misconduct actually occurred and if so, whether it was prejudicial." Id. (internal quotation marks omitted)
(quoting United States v. Rodriguez, 675 F.3d 48, 58 (1st Cir.2012)).
Here, the defendants came forward with factual information fairly establishing that Juror 86 likely gave an inaccurate
answer to question 3 on the written questionnaire. Further, the uncontested facts submitted by defendants also made it
quite likely — although not certain — that the juror's inaccuracy was knowing. Defendants also showed that the correct
answer to question 3 may well have been quite relevant to assessing the juror's ability to fairly sit in judgment in this
case. The mother of a drug user arrested for dealing to support his drug habit might have some strong thoughts about
those who produce the drugs.
The district court posited that perhaps "n/a" meant something other than "not applicable." And the government supposes
that the juror may not have regarded her son's experience as involving a "court matter." Perhaps, too, her son's
prosecution had left her hostile toward government prosecutors. Each hypothesis is plausible, but insufficiently likely so
as to warrant rejecting without investigation the claim of juror misconduct as improbable. The defendants' initial burden
is only to establish that their claim of juror misconduct is "colorable or plausible." Id. at 464. They need not show at the
outset that their claim is so strong as to render contrary conclusions implausible. Nor need the defendants support their
claim initially with testimony from the juror. In this circuit, counsel cannot even question the juror until the court gives
permission. See United States v. Kepreos, 759 F.2d 961, 967 (1st Cir.1985). So a court-supervised investigation aimed
at confirming and then exploring further the apparent dishonesty was called for.
118
In concluding otherwise, the district court placed great weight on the fact that defense counsel did not ask Juror 86 more
questions at voir dire or bring to the *118 court's attention the fact that the juror did not complete or sign the
questionnaire. Concluded the district court, "it was the Defendants' own responsibility to recognize the problem and
address the issue when the voir dire commenced." Order Denying Motion for New Trial at 30. We disagree. As for
question 3, taking "n/a" according to its most customary meaning, there was no reason to ask any follow-up. So the
relevant inquiry is whether defendants effectively waived any ability to complain about a possible lie by a juror in
responding to question 3 because defendants did not complain about the juror's failure to answer other, unrelated
questions and sign the form.
Certainly, counsel could have insisted that the juror finish the form and sign it. And we have no reason to doubt that their
failure to do so likely precluded the defendants from later pointing to those omissions as a basis for any relief. We see
no good reason, though, to extend that preclusion to a request for relief based on the later discovery that an answer
actually given was dishonest and materially false. Waiver is too strong a sanction to be extended so broadly. Given no
apparent connection between question 3 and the unanswered questions, and no good reason to conclude that answers
to those questions likely would have revealed the problem with the answer to question 3,[1] it would be unduly
speculative to conclude that any insistence that Juror 86 complete the questionnaire would have put either party in a
different position.
The district court was concerned, too, that the long passage of time since trial would render it "very difficult ... to recreate
what happened at voir dire." Id. at 47. That might be the case, but then again it might well not, particularly if Juror 86's
reasons for answering inaccurately were strongly felt. The only way to tell if the passage of time would have erased
Juror 86's memory of events would be to ask her to recall these events, something the district court declined to do.
The district court also based its holding on a finding that Juror 86 "honestly" answered question 3. Id. at 23-25. But this
conclusion was simply another application of the waiver theory that we have just discussed and rejected, as the able
district court judge frankly acknowledged, in stating: "The Court does not know what exactly Juror 86 was thinking when
she wrote `n/a' because defense counsel did not seek to question her during voir dire." Id. at 23.
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Additionally, the district court decided that a correct answer to question 3 would have produced no grounds to have
Juror 86 stricken for cause. Id. at 41-42. Even now, though, we only know what the truthful answer to question 3(a)
would have been. What the answers were to parts 3(b) and (c), or to any likely follow-up questions, remain mysteries.
Moreover, we do not see how a court can say whether the juror in this instance was unduly biased without knowing why
she answered as she did. For this reason, the ultimate inquiry under Sampson requires that the court consider "the
reason behind the juror's dishonesty." 724 F.3d at 165-66. Again, it seems unlikely that the district court misconstrued
Sampson, and more likely that its finding on this point presumed the correctness of its ruling that waiver precluded proof
of dishonesty.
119
As to Juror 86's non-response during oral voir dire, we agree with the district court that the questions posed were
ambiguous and thus Juror 86's lack of an affirmative response was not itself cause *119 for finding juror misconduct. For
our purposes, though, the important point is that nothing about the juror's conduct at the voir dire served to put counsel
on notice that the answer to question 3 on the questionnaire was false.
C.
One major loose end remains. The district court also concluded that even if Juror 86 had committed misconduct, there
was no prejudice to defendants because the government had a strong case. Order Denying Motion for New Trial at 50.
The government latches onto this finding, contending that the case against defendants was "overwhelming" and that
following Wilder v. United States, 806 F.3d 653, 659-60 (1st Cir.2015), we should find any error here to be harmless.
Unsurprisingly, defendants disagree. They contend that to the extent harmless error analysis is appropriate at all, the
question of prejudice is not answered by determining whether an unbiased jury would have convicted, but rather, by
determining whether the potentially biased juror was actually biased.
Defendants have the better of the argument. Wilder is distinguishable from the present case on several axes. First and
foremost, Wilder concerned a procedurally defaulted claim, raised for the first time on a petition pursuant to 28 U.S.C. §
2255, challenging a federal court conviction, and the Supreme Court has made very clear that relief under section 2255
is only appropriate when "actual prejudice" results to the defendant. Id. at 658 (citing Bousley v. United States, 523 U.S.
614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). No such categorical bar exists on direct appeal. Second, and
perhaps more fundamentally, the nature of the right violated in Wilder was different than that at issue here. In Wilder, the
petitioner claimed to have been denied the right to a public jury selection process and the right to be present for that
process. Id. at 655-66. The petitioner in Wilder made no claim that any member of the jury was biased, only that he
might have asked different questions during voir dire thus securing a more favorable jury. Id. at 659-60. Here, by
contrast, defendants have made a colorable claim that a biased juror was seated, and seek to investigate that claim
further. And since rejecting a claim of error as harmless presupposes the existence of the error in question, we would
assume in harmless error analysis that Juror 86 was, in fact, biased.
In any event, the decisive point is that we view the presence of a biased juror as structural error — that is, per se
prejudicial and not susceptible to harmlessness analysis. While we have not previously stated the matter so directly,
precedent from this court and from the Supreme Court dictates that conclusion. The Supreme Court has explained that,
though structural error is rare, it is the appropriate finding for "defect[s] affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself," Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct.
1246, 113 L.Ed.2d 302 (1991), and for those errors that "deprive defendants of `basic protections' without which `a
criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence,'" Neder v. United
States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct.
3101, 92 L.Ed.2d 460 (1986)). In that vein, the Supreme Court has held that trial before a biased judge is structural
error, Tumey v. Ohio, 273 U.S. 510, 522-24, 535, 47 S.Ct. 437, 71 L.Ed. 749 (1927), as is trial before a jury whose
impartiality has been fatally compromised, Turner v. Louisiana, 379 U.S. 466, 471-74, 85 S.Ct. 546, 13 L.Ed.2d 424
(1965).
120
*120 In Sampson, we noted that "[i]f even a single biased juror participates in the imposition of the death sentence, the
sentence is infirm and cannot be executed." 724 F.3d at 163 (citing Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct.
2222, 119 L.Ed.2d 492 (1992)). We also described the right to an impartial jury as "constitutional bedrock." Id. While the
concern for an impartial jury is certainly at its highest when a defendant's life is on the line, it is still highly significant
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when defendants face the prospect of incarceration. Other circuits have squarely held that the presence of a biased
juror in a criminal case is structural error. See Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.2008). We think it only
logical to agree and to state the rule clearly today: The presence of a juror whose revealed biases would require striking
the juror for cause in a criminal case is structural error that, if preserved, requires vacatur.
Because the presence of a biased juror is structural error, the government's contention that its case against defendants
was very strong is of no moment. If defendants can establish Juror 86's disqualifying bias after the investigation by the
district court, the conviction would necessarily be set aside regardless of the strength of evidence.
Cognizant that the passage of time may create problems on remand, defendants suggest that we skip remand
altogether and order a new trial. Defendants abandoned this position at oral argument, and wisely so. While we
appreciate that the passage of time can cause memories to fade, we are aware of no case in which, faced with a
potentially biased juror and the need to investigate further, an appellate court has ordered a new trial without first
permitting the district court to investigate. We decline to do so here.
However, to the extent that memories have faded in the two years between the defendants' filing of their motion for a
new trial and this decision, we place the responsibility for that possible loss of evidence at the feet of the government,
not the defendants. Defendants first became aware of the issue with Juror 86 in March 2016, and filed their motion
approximately one month later, all while in the midst of preparing for sentencing. That timeframe exhibits sufficient
diligence on the part of defendants. The government then had the option of acquiescing to the defendants' request to
bring Juror 86 in for an evidentiary hearing, but elected to oppose it, resulting in now over two more years of litigation on
the issue. If the staleness of the memories resulting from that additional two-year period becomes a problem that cannot
be solved on remand, we think it only fair for that to cut against the government.
To sum up: Defendants' motion for a new trial based on the alleged bias of Juror 86 presented a "colorable or plausible"
claim of the type of juror misconduct that could require a new trial, and defendants did not waive the ability to raise such
a challenge. The district court was therefore required to do more before ruling on the new trial motion. For this reason,
we vacate the denial of the defendants' motion for a new trial based on the possible bias of Juror 86 and remand for
further proceedings on that motion.
III.
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Defendants also filed a separate motion for a new trial based on the voir dire responses of another juror, Juror 79. Only
Russell, and not French, appeals the denial of this motion. Defendants contend that Juror 79 gave a dishonest answer
at voir dire when he did not acknowledge knowing Steve Koenig, a trial witness. *121 Koenig is the executive director of
a salmon habitat restoration group, Project SHARE. At trial he testified that he worked on land owned by Haynes
Timberland and Malcolm French to construct culverts on rivers so that salmon could pass through them. He testified that
although there were gates in Township 37, he was regularly allowed on the land. Koenig's testimony was
uncontroversial and not by its nature conducive to raising credibility questions.
Though he was called by the government, Koenig was actually on French's witness list. Counsel included no further
information on this list, such as Koenig's job or employer or even residence. The entire witness list, containing the
names of twelve potential witnesses, was read to the pool of potential jurors, including Juror 79. As found by the district
court after reviewing an audio recording of voir dire, the magistrate judge mispronounced Koenig's name without any
correction by counsel who presumably knew his name. Order Denying Motion for New Trial at 34-35, United States v.
French, No. 12-cr-00160-JAW (D. Me. Apr. 27, 2015), ECF No. 499. In response to general inquiry of the pool, Juror 79
gave no indication that he knew Koenig.
After the trial French spoke with Koenig, who mentioned that he knew and had had contact prior to trial with Juror 79, a
biologist working for the federal government. Id. at 24-25. On the basis of this information, defendants moved for a new
trial, claiming that Juror 79 had concealed a familiarity with Koenig to their detriment.
The district court deemed this report enough to warrant further inquiry in the form of hearing directly from Koenig. After
doing so at an evidentiary hearing at which Koenig testified, the district court found as fact that Koenig and Juror 79
spoke to one another on the phone for five to ten minutes sometime in the year prior to trial about a project Koenig was
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managing near Acadia National Park. Id. at 34. The two had never met before trial, nor was there any probative
evidence of any other direct contact between the two prior to trial. Id.
Having so found, the district court concluded that no further investigation was required. In so doing, the district court
expressed concern that defendants, who had unrestricted access to their listed witness (Koenig) and who knew both
Koenig's job and the job of Juror 79, did not explore the issue (with Koenig himself, perhaps?) prior to trial. Id. at 55. The
district court also expressed much concern about the effect on Juror 79 and on other prospective jurors of calling Juror
79 in to be examined on why he did not say that he knew Koenig when the evidence made the answer reasonably
obvious. Id. at 55-58. On this record, we think there is certainly some merit to this reasoning, but we need not decide if
Russell waived any concern about Juror 79 because, even setting aside the possibility that defense counsel were
sandbagging, the claim would fail.
122
As we explained in connection with discussing Juror 86, once a defendant makes a colorable claim of juror bias, the
district court has a duty to investigate. See Zimny, 846 F.3d at 464. Though a defendant need only present a "colorable"
claim to trigger an investigation, he or she nonetheless retains the burden to prove juror bias by a preponderance of the
evidence based on that investigation. See Sampson, 724 F.3d at 166. Here, in response to an initially colorable claim,
the district court brought in Koenig for questioning, but saw no reason to go further and bring in Juror 79 after hearing
Koenig's testimony. For the following reasons, we find no reason to *122 deem that decision to be an abuse of
discretion.
First, the limited nature of Koenig's contact with Juror 79 renders speculative any claim that Juror 79 would have
recognized Koenig's name when read out of context and mispronounced. Koenig was one of presumably many
individuals who had occasion to be in contact with Juror 79, a government employee. The contact itself was isolated and
lacked any attributes that would make it more memorable than any of the many other similar calls and inquiries Juror 79
likely had reason to conduct in his professional life. Importantly, and unlike the situation with Juror 86, there is no reason
to think that Juror 79 had any motive to withhold information in response to the question posed. In other words, if he
recalled the brief, inconsequential call with Koenig, he had no obvious reason not to say so. Before the district court,
defense counsel actually speculated that Juror 79 somehow knew at the time of voir dire that forfeiture of the land was a
possible result of conviction, so he lied to be sure he could serve on the jury to participate in getting the environmentally
valuable land for the public. But Russell has abandoned this position on appeal. And it would fail in any event; the
improbable product of rank speculation is no basis for a finding of juror bias.
Relatedly, the information lost to counsel — that Koenig and Juror 79 spoke on the phone once for five to ten minutes —
was at best barely material. So we have here several very likely explanations for the lack of a response by Juror 79 (he
never knew, or forgot Koenig's name, or did not recognize it as mispronounced), no plausible reason to lie, and marginal
materiality at best. On such a record, having heard testimony from Koenig, the district court did not abuse its discretion
in deciding to deny the motion without additional investigation.
IV.
Because we are vacating and remanding for an evidentiary hearing concerning the possible bias of Juror 86, we could
defer review of the drug quantity issue, and only reach it if it becomes necessary following that hearing. However, we
find the matter to be straightforward, and resolving it now may provide efficiencies down the road.
In drug conspiracy cases, the sentencing guidelines are largely driven by the quantity of drugs involved in the
conspiracy. See U.S.S.G. § 2D1.1 (sentencing table). In cases in which marijuana plants are seized, the quantity is
determined either by the actual usable weight of the marijuana or, if that is not available, by assigning a weight of 100
grams per plant recovered. See id. (background).
123
Although the government discovered and could count the number of plants growing in 2009, the government did not
have direct evidence of the number of plants grown during the other three years relevant to sentencing; instead, it relied
upon the amount of Pro-Mix fertilizer purchased as a proxy for the number of marijuana plants grown. In a nutshell, a
supplier's business records showed how much Pro-Mix fertilizer the supplier sold to French and his associates over a
four-year period, and government witnesses in turn testified as to how much Pro-Mix was used on each basket of
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marijuana (½ to 1-½ bags) and how many plants were in each basket (three to six plants). The PSR, and then the
district court, assumed favorably to defendants that 1-½ bags were used for each basket and each basket contained
only three plants. The district court also put to one side the number of plants discovered in 2009, which greatly
exceeded *123 the number of plants that one would expect using those conservative assumptions unless one posited
that much of the Pro-Mix bought in prior years was not used until 2009.
This doubly conservative approach correlated the number of plants to the amount of fertilizer, resulting in a finding of
9,180 plants, which, using the 100 gram-per-plant formula, yielded a drug quantity calculation of 918 kilograms.
Sentencing Order on Drug Quantity at 22, United States v. French, No. 12-cr-00160-JAW (D. Me. Apr. 12, 2016), ECF
No. 647 [hereinafter "Sentencing Order on Drug Quantity"]. This in turn led to the calculation of a base offense level of
28 for both Russell and French. Id. at 23. Ultimately, the district court sentenced Russell to 151 months' imprisonment
and French to 175 months' imprisonment. Transcript of Sentencing Proceedings at 135, 139.
Russell and French argued that this methodology was speculative, proposing instead to use a methodology based on
the amount of money the migrant workers involved in harvesting the plants sent home. In subsequent sentencing
memoranda, French urged the court to use the amount of baskets found at the grow sites as a proxy for marijuana
plants.
We review drug quantity calculations for clear error, and these calculations "need not be precise to the point of pedantry.
A reasoned estimate based on historical data will suffice." United States v. Bernier, 660 F.3d 543, 546 (1st Cir.2011)
(citations and internal quotation marks omitted). The district court reviewed the evidence and found that the testimony of
the seller of the Pro-Mix, as well as that of co-conspirators, established the connection of the Pro-Mix to the operation.
Sentencing Order on Drug Quantity at 17. It also found that there was no evidence in the record as to any other use for
the Pro-Mix beyond cultivating marijuana. Id. Further, it noted that the basket methodology presumed that no reuse of
baskets occurred, but the record did not rule out this possibility. Id. at 24. Based on this reasoning, the district court
expressly found that the Pro-Mix method allowed for the "reasoned estimate" required by Bernier. Id. at 15-16. And at
the sentencing hearing, the district court stated that "among the alternatives that have been proposed, [the Pro-Mix
method] is the most accurate of them." Transcript of Sentencing Proceedings at 46.
Given the district court's cogent reasoning and engagement with the evidence on this issue, as well as its willingness to
indulge several defendant-friendly assumptions, we cannot conclude that the use of the Pro-Mix methodology was
clearly erroneous. Accordingly, the drug quantity calculation provides no basis to vacate the defendants' sentences.
V.
In addition to the juror-bias challenges and the drug quantity issue, Russell raises three additional challenges on appeal.
As we noted above, since we are vacating and remanding the matter for an evidentiary hearing, we could simply decline
to resolve these challenges at present. But, as with the drug quantity issue, we find Russell's further challenges to be
easily addressed, so we resolve them now for efficiency's sake.
A.
124
During jury selection, French's counsel objected to the government's peremptory strike of the only African-American
prospective juror. See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The government
in response offered three race-neutral reasons *124 for its strike, including most notably the fact that the juror had been
sleeping from time to time during the selection process. Counsel for French then withdrew the objection. Russell did not
make a Batson challenge of his own, nor did his counsel protest French's counsel's withdrawal of the challenge. Now on
appeal, Russell concedes that this issue was unpreserved and is reviewable for plain error only. By contrast, the
government urges us to find waiver because French's counsel — the attorney who actually made the objection —
explicitly withdrew it.
We need not decide whether Russell waived or merely forfeited the issue because, even if only forfeited, the claim
would fail on plain error review. Neither during jury selection nor on appeal has Russell suggested that the prospective
juror did not doze off. Nor can Russell reasonably suggest that a preference for jurors who pay attention is
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unreasonable. We therefore see no error, let alone a clear or obvious one, in finding this to be a race-neutral explanation
for the strike sufficient to forestall a Batson challenge.
B.
Russell also contends that the district court erred in admitting evidence concerning his prior convictions for felony
health-care fraud. Russell argued prior to trial that the convictions should not come in, but he did not persuade the
district court to exclude them. He then elected to testify to the convictions on direct examination, presumably in hopes of
preemptively tempering the impact those convictions would have upon the jury's perception of his credibility.
Because he chose to testify to the convictions on direct examination, Ohler v. United States dictates that he waived the
claim on appeal. 529 U.S. 753, 760, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000) ("[W]e conclude that a defendant who
preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission
of such evidence was error."). Undeterred, Russell contends that Justice Souter's dissent in Ohler was the more
persuasive opinion. Whatever the merits of that position, we are bound by the majority opinion, and thus agree with the
government that Russell waived any challenge to the introduction of his prior convictions by testifying to them on direct
examination.
C.
Finally, Russell argues that several statements the prosecutor made during closing argument amounted to misconduct
necessitating a new trial. We are unconvinced. Russell concedes that he did not object contemporaneously to the
statements and that review is thus for plain error only. When faced with a claim that a prosecutor's comments during a
closing statement were improper, we vacate a conviction only if the remarks "so poisoned the well that the trial's
outcome was likely affected." United States v. Kasenge, 660 F.3d 537, 542 (1st Cir.2011) (quoting United States v.
Henderson, 320 F.3d 92, 107 (1st Cir.2003)). In assessing this question, we consider the severity of the conduct and
whether it was deliberate, the context, the presence of curative instructions and their likely effect, and the strength of the
prosecution's case. Id.
125
We see no plain error meriting vacatur here. Two of Russell's concerns go to the notion that the prosecutor unfairly
disparaged the defendants and various witnesses by suggesting that Russell and French's testimony was not credible
given their motivations and the other evidence, and by describing various witnesses as "liars" and "scoundrels." But
commenting on the credibility of witnesses is usually appropriate *125 in a closing argument. As to the suggestion of
inflammatory language, the context of the remarks makes clear that the government was acknowledging that its own
witnesses were imperfect.
Russell also suggests that the prosecutor made several factual misrepresentations to the jury — specifically, that
Russell had told one worker to stay away from Maine after law enforcement became involved and that the coconspirators burned down their camp. He further contends that the prosecutor told the jury that Pro-Mix could not be
sold, contrary to the evidence. We see none of these statements as sufficient to cast the conviction in doubt. As to the
first two, assuming arguendo that these comments slightly overstated the evidence, they were isolated and minor
comments in the context of a much larger web of evidence pointing to Russell's guilt. As to the third, Russell simply
misconstrues the prosecutor's statement. The prosecutor was not saying that Pro-Mix could never be resold. Rather, he
was casting doubt on the far-fetched theory that defendants purchased large amounts of Pro-Mix to pay off a local gang.
In any event, the district court instructed the jury that closing statements were not evidence, and we have no reason to
doubt the jury's ability to follow that instruction. See United States v. Spencer, 873 F.3d 1, 16 (1st Cir.2017) (noting the
court's "long-standing presumption that jurors follow instructions"). Furthermore, the case against Russell was strong,
consisting of both physical evidence and the testimony of multiple witnesses directly implicating him in the conspiracy. In
short, we see no clear error that could have prejudiced Russell.
VI. Conclusion
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We vacate the order denying the motion for a new trial based on the response of Juror 86 to question 3 on the jury
questionnaire, and remand for further proceedings on that motion. We otherwise reject all of the defendants' challenges
to their convictions and sentences.
[1] The unanswered questions asked for the names of any spouse, educational background, criminal history, English-language
comprehension, and health.
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