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United States v. French

United States Court of Appeals, First Circuit

September 17, 2018

MALCOLM FRENCH and RODNEY RUSSELL, Defendants, Appellants.


          Jamesa J. Drake, with whom Benjamin Donohue, Thomas Hallett, Hallett, Zerillo & Whipple, PA, and Drake Law, LLC were on brief, for appellant Malcolm French.

          William S. Maddox 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.


         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 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.


         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) 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.


         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.


         Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset 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:

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 ...

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