APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MAINE Hon. John A. Woodcock, Jr., U.S. District
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.
Thompson, Selya, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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.
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]
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.
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 ...