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United States

United States District Court, D. Maine

January 28, 2015

UNITED STATES OF AMERICA
v.
RODNEY W. RUSSELL

ORDER DENYING DEFENDANT'S MOTION TO VACATE CONVICTION AND MOTION FOR NEW TRIAL

JOHN A. WOODCOCK, Jr., District Judge.

Following his convictions for a series of federal crimes, the Defendant moves to vacate the convictions and for a new trial on the ground that the Court allowed evidence of four prior convictions for false statements to be admitted for impeachment purposes at trial, and two of those convictions were later overturned on appeal. The Court denies the motions because the fact of the convictions and the fact that they were on appeal were properly admissible under Federal Rule of Evidence 609(a)(2) and (e) and the Defendant's issue is with the Rule, not the ruling. Furthermore, as the Defendant introduced the convictions during direct examination, he waived the right to challenge their admission. In addition, a later vacating of convictions is an awkward fit for a Rule 33(b) motion and, in any event, as only two, not all four, false statement convictions were vacated, the admission, if error, was harmless. Finally, the Court rejects the Defendant's contention that by admitting his statements to the officer who arrested him for the false statement charges, the Court committed legal error.

I. BACKGROUND[1]

A. False Statement Convictions and Appeal

On September 15, 2010, in a six-count indictment, a federal grand jury indicted Rodney W. Russell for making false statements in connection with a health care benefit program. United States v. Russell , 1:10-cr-00149-JAW, Indictment (ECF No. 3). On April 28, 2011, Rodney Russell was convicted of four counts of making a false statement in connection with a health care benefit program, in violation of 18 U.S.C. ยง 1035(a)(2). Id . Jury Verdict (ECF No. 78). On March 9, 2012, Mr. Russell appealed his convictions to the Court of Appeals for the First Circuit. Id . Notice of Appeal (ECF No. 138). On August 26, 2013, the First Circuit affirmed Mr. Russell's four convictions. United States v. Russell, 728 F.3d 23 (1st Cir. 2013). On November 11, 2013, Mr. Russell filed a petition for writ of certiorari with the United States Supreme Court. Russell v. United States, 728 F.3d 23 (1st Cir. 2013), petition for cert. filed, (U.S. Nov. 11, 2013) (No. 13-7357).

B. New Charges and New Convictions

Meanwhile, on September 14, 2012, a federal grand jury indicted Mr. Russell for a separate set of federal crimes, Indictment (ECF No. 2), and on November 13, 2013, a grand jury issued a superseding indictment against Mr. Russell and other Defendants for conspiracy to manufacture 1, 000 or more marijuana plants, manufacturing 1, 000 or more marijuana plants, maintaining a drug-involved place, harboring illegal aliens, and conspiracy to distribute and possess with the intent to distribute marijuana. Superseding Indictment (ECF No. 187). The case went to trial from January 8, 2014 through January 24, 2014, and on January 24, 2014, a federal jury issued a verdict, convicting Mr. Russell of conspiracy to manufacture 1, 000 or more marijuana plants, manufacturing 1, 000 or more marijuana plants, two counts of using or controlling a drug-involved premises, three counts of harboring illegal aliens, and conspiracy to distribute marijuana. Jury Verdict Form (ECF No. 311).

C. False Statements: A Surprising Appellate Turn

Turning back to the false statement convictions, the petition for writ of certiorari took a surprising and unconventional turn. Despite a circuit split, on March 10, 2014, the Solicitor General filed a confession of error with the United States Supreme Court, effectively conceding that the First Circuit and other similar circuits had erred. Br. for the United States in Opp'n, Russell v. United States, 134 S.Ct. 1872 (2014) (No. 13-7357), 2014 WL 1571932, at *6-19. On April 21, 2014, the United States Supreme Court issued the following opinion:

On petition for writ of certiorari to the United States Court of Appeals for the First Circuit. Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the First Circuit for further consideration in light of the confession of error by the Solicitor General in his brief for the United States filed on March 10, 2014. Justice Scalia would deny the petition for writ of certiorari.

Russell v. United States, 134 S.Ct. 1872 (2014).

D. The First Circuit Affirms and Vacates the False Statement Convictions and this Court Resentences Rodney Russell

Following receipt of the Supreme Court mandate, the First Circuit issued an order on remand on May 20, 2014. United States v. Russell , 1:10-cr-00149-JAW, J. (ECF No. 160). In its Order, the First Circuit concluded that as to Counts 2 and 4 of the indictment, the "evidence of bad purpose' as to those counts is overwhelming and so the error is harmless beyond a reasonable doubt." Id. at 1. As to the convictions for Counts 3 and 5, the First Circuit could not "say beyond a reasonable doubt that the instructional error was harmless." Id. The First Circuit therefore affirmed the false statement convictions on Counts 2 and 4 and vacated the convictions on Counts 3 and 5, remanding those counts for further proceedings consistent with its Order. Id. at 2.

Mr. Russell challenged the First Circuit ruling. On June 6, 2014, he filed a petition for rehearing en banc; the First Circuit denied that petition on June 20, 2014. On July 2, 2014, the First Circuit issued its mandate. United States v. Russell , 1:10cr-00149-JAW, Mandate (ECF No. 173). Mr. Russell filed another petition for writ of certiorari with the Supreme Court on September 2, 2014. On October 14, 2014, the Supreme Court rejected the new petition for writ of certiorari. Russell v. United States, cert. denied, 135 S.Ct. 386 (2014).

While being resolved at the Supreme Court level, the case continued at district court. After receipt of the First Circuit's Judgment, on July 2, 2014, the Government moved to dismiss Counts three and five of the indictment in the false statements case. United States v. Russell , 1:10-cr-00149-JAW, Gov't's Mot. to Dismiss Counts Three and Five of the Indictment (ECF No. 172). On August 20, 2014, the Court granted the Government's motion. Id . Order (ECF No. 179). On November 13, 2014, after the Supreme Court ruled against Mr. Russell on his second petition for writ, this Court resentenced Mr. Russell on the remaining two counts, re-imposing the same term of incarceration of five months (which Mr. Russell had already served), lowering the fine from $5, 000.00 to $2, 861.00, and reducing the special assessment from $400.00 to $200.00. Compare id. J. (ECF No. 136), with Am. J. (ECF No. 185).

E. The January 2014 Trial and the False Statement Convictions

1. January 22, 2014 Sidebar

In January 2014, after the First Circuit decision and before the Supreme Court remand, Mr. Russell and several other Defendants went to trial on the second set of charges. After the Government rested, counsel for Mr. Russell approached sidebar and addressed whether, if he testified, he would be subject to impeachment from the four prior false statement convictions. Partial Tr. of Proceedings (ECF No. 381) ( Sidebar Tr. ). Knowing that the First Circuit opinion was on appeal, his defense counsel objected to impeachment based on those four convictions on the ground that "it's not a final conviction." Id. 2:18-19.

Noting that Federal Rule of Evidence 609(e) addresses how to handle an appealed conviction, the Court observed that under the Rule, the conviction does not have to be final and evidence of the pendency of the appeal would also be admissible. Id. 2:20-3:5. Defense counsel asked whether it was just the fact of the convictions that would be admissible or whether the facts underlying the convictions would also be admissible. Id. 3:15-17. The Court ruled that only the fact of the convictions would be admissible unless Mr. Russell generated further questioning by his testimony. Id. 3:18-4:4. Mr. Russell elected to testify. Id. 4:10.

2. Rodney Russell's Trial Testimony Regarding the Prior Convictions

During Mr. Russell's testimony, defense counsel elicited the following regarding prior convictions:

Q. Now, Mr. Russell, just in the way of background, you've been to trial once before on another case, correct?
A. Yes.
Q. And were you charged with a criminal offense?
A. Yes.
Q. And what was the charge?
A. Um, health insurance fraud for zero dollars.
Q. And you went through to trial?
A. Yes.
Q. And were you convicted for that offense?
A. Yes.
Q. And when was that?
A. Um, April of 2011.
Q. After that conviction, did you appeal the ...

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