United States District Court, D. Maine
ORDER DENYING DEFENDANTS' SUPPLEMENTAL MOTIONS FOR NEW TRIAL
JOHN A. WOODCOCK, Jr., District Judge.
The Government committed a Brady  violation by failing to disclose to the defense a pre-indictment meeting among a prime Government witness, his wife, and the Government in which the wife expressed concerns about the witness' mental state following a traumatic brain injury. Nevertheless, the Court concludes that most of the information from this meeting was already available or became known to the Defendants at trial, and they have not established by a reasonable probability that, had the meeting and its contents been disclosed to the defense, the result of the proceeding would have been different. The Court denies the Defendants' motions for new trial.
A. Superseding Indictment, Trial and Conviction
On September 14, 2012, a federal grand jury indicted Kendall Chase, Malcolm French, Haynes Timberland, Inc. and Rodney Russell for a set of federal crimes. Indictment (ECF No. 2). On November 13, 2013, a grand jury issued a superseding indictment against Kendall Chase for conspiracy to manufacture 1, 000 or more marijuana plants, manufacturing 1, 000 or more marijuana plants, and conspiracy to distribute and possess with the intent to distribute marijuana. Superseding Indictment (ECF No. 187). The grand jury also indicted Mr. Russell 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. Id. In addition, the grand jury indicted Malcolm French for conspiracy to manufacture 1, 000 or more marijuana plants, manufacturing 1, 000 or more marijuana plants, managing and controlling a drug-involved place, harboring illegal aliens, and conspiracy to distribute and possess with the intent to distribute marijuana. Id. Finally, the grand jury also indicted Haynes Timberland, Inc. for managing and controlling a druginvolved place. Id.
The case went to trial from January 8, 2014 through January 24, 2014. On January 24, 2014, the jury returned verdicts finding Malcolm French, Rodney Russell, and Kendall Chase guilty of engaging in a conspiracy to manufacture marijuana, finding Malcolm French and Rodney Russell guilty of manufacturing marijuana, finding Malcolm French, Rodney Russell, and Haynes Timberland, Inc. guilty of managing or controlling a drug-involved premises, finding Malcolm French and Rodney Russell guilty of harboring illegal aliens, and finding Malcolm French, Rodney Russell, and Kendall Chase guilty of engaging in a conspiracy to distribute marijuana. Jury Verdict Form (ECF No. 311).
B. The Pending Motions
On January 21, 2015, Kendall Chase moved for a new trial alleging that the Government had failed to comply with its Brady obligations by failing to disclose a meeting that Kelley McTague, Winston McTague's wife, had with Joel Casey, the Assistant United States Attorney (AUSA) in this case, before Mr. McTague's grand jury testimony, in which Ms. McTague "expressed her concerns about Mr. McTague's mental health." Def. Chase's Mot. for New Trial at 4 (ECF No. 461) ( Chase Mot. ). On January 29, 2015, February 4, 2015, and February 13, 2015, Malcolm A. French, Rodney Russell and Haynes Timberland, Inc. respectively joined in Mr. Chase's motion for new trial. Def.'s Supplemental Mot. for New Trial (ECF No. 465) ( French Mot. ); Def. Rodney Russell's Supplemental Mot. for New Trial (F.R.Crim.P. 33(a)) (ECF No. 468) ( Russell Mot. ); Def. Haynes Timberland, Inc.'s Joinder in Def. Kendall Chase's Mot. for New Trial, Def. Malcolm French's Supplemental Mot. for New Trial, and Def. Rodney Russell's Supplemental Mot. for New Trial (ECF No. 472) ( Haynes Mot. ). The Government responded on February 9, 2015. Gov't's Objection to Def. Chase's Mot. for New Trial, Def. French's Supplemental Mot. for New Trial, and Def. Rodney Russell's Supplemental Mot. for New Trial (ECF No. 469) ( Gov't's Opp'n ). On February 19, 2015 and February 23, 2015, Malcolm French and Kendall Chase respectively replied to the Government's opposition. Def.'s Reply to Gov't's Objection to Def.'s Supplemental Mot. for New Trial (ECF No. 473) ( French Reply ); Def. Chase's Reply to the Gov't's Response Regarding the Withheld McTague Information (ECF No. 476) ( Chase Reply ). The Court heard oral argument on March 17, 2015. Minute Entry (ECF No. 487).
C. Affidavit of Kelley McTague
Accompanying the replies of Mr. French and Mr. Chase is an affidavit of Kelley McTague. French Reply Attach. 1 Aff. of Kelley McTague; Chase Reply Attach. 1 Aff. of Kelley McTague ( McTague Aff. ). In relevant part, Ms. McTague stated:
4. I asked Winston's lawyer, Matthew Erickson, in writing, to set up a meeting because I felt Winston had a compromised mental state and that testifying would not be good for his health.
5. The meeting was with the United States Attorney and investigators before Winston's Grand Jury testimony.
6. The meeting lasted 15 minutes. Present at the table were Joel Casey (the U.S. Attorney), Jonathan Richards (the case agent), Winston McTague, myself, and perhaps others.
7. In this meeting, I expressed my concerns about my husband's mental health and capabilities.
8. My focus was to make it clear to the government that Winston's traumatic brain injury from the motorcycle accident in 2007 left him in a very compromised mental position and the stress from testifying is something that I feared would be detrimental for his health.
9. I intended to educate the government that the stress from the trial would be too much for Winston.
10. I informed them that Winston has a tendency to exaggerate things.
11. At the time of the meeting, Winston was suicidal.
12. I described how Winston saw things in his mind which he described as "movies in his head" and that, at the time, he was very paranoid.
13. The government listened to my concerns but I didn't change their minds. They asked no specific questions in response to my concerns.
Id. at 1-2.
II. THE PARTIES' POSITIONS
A. The Defendants' Motions
Kendall Chase filed the lead motion. Chase Mot. at 1-7. Mr. Chase begins with reiterating some basic principles of federal criminal law about the Government's obligation to disclose evidence, including impeachment evidence, and the requirements to establish a Brady violation. Id. at 1-4. Mr. Chase explains the circumstances under which he learned about the prosecutor's interview with Ms. McTague:
After [Mr. McTague's trial] testimony, and, indeed, nearly nine months after the jury verdict, Mrs. Kell[e]y McTague revealed to Mrs. Jan Chase that she had a meeting with the United States Attorney and investigators prior to Winston [McTague]'s Grand Jury testimony wherein she expressed her concerns about Mr. McTague's mental health.
Id. at 4. He repeats the context and substance of the prosecutor's interview with Ms. McTague, which Ms. McTague described nearly verbatim in her affidavit. Compare id. at 4-5, with McTague Aff. Mr. Chase says that the Government never provided him or the other Defendants with information about this meeting. Chase Mot. at 5.
Mr. Chase asserts that Mr. McTague was "the primary witness linking Mr. Kendall Chase to the marijuana operation." Id. He goes on to say that Ms. McTague's information "could have been used to impeach the credibility of the government's key witness and his ability to accurately recall information." Id. at 6. Mr. Chase claims that Mr. McTague's credibility "was central to the conviction of Mr. Chase" and that Mr. McTague "could have been questioned as to his bias against the defendants, " "how the extraordinary stress being placed on him affected the movies in his head, " and "[m]ost importantly, ... [the defense] could have questioned Mr. McTague as to his exaggerations and how that tendency affected his ability to accurately recall the extent of Mr. Chase's participation and the scale of the alleged endeavor." Id. Mr. Chase ends by asserting that disclosure of this information would have resulted in a "weaker case" for the Government, and would have allowed the defense to discredit Mr. McTague "in the jury's eyes and a different verdict would have resulted." Id. at 6-7. In the motion, Mr. Chase requested a testimonial hearing to develop this new evidence. Id. at 7.
In Mr. French's supplemental motion, he notes that on September 28, 2012, his counsel sent the Government a letter demanding "any exculpatory evidence material to guilt or punishment." French Mot. at 1. Mr. French says that the "deliberate withholding of this material information is a violation of the fundamental rule from Brady v. Maryland and the only appropriate remedy in light of this deliberate violation is for this Court to grant Defendant a new trial." Id. at 1-2.
Mr. French notes that Mr. McTague was asked whether any "family members had expressed concerns about his ability to accurately and truthfully remember events" and that Mr. "McTague denied, incredibly, any such concerns had ever been expressed." Id. at 6. Mr. French emphasizes that this testimony by Mr. McTague was not only inaccurate, but also the person presenting this information to the Government was Mr. McTague's wife, who "expressed these very concerns to the prosecutor who would elicit major pieces of testimony from [him]." Id.
Mr. French argues that once the Court concludes that the evidence the Government failed to turn over is material, "because its withholding undermines confidence in the verdict and created a fundamentally unfair trial process, " the Court "does not need to ask itself whether a different verdict would have resulted if this evidence had been provided, but only needs to find that this evidence was withheld and that this withholding undermines confidence in the verdict and fairness in the trial." Id. at 7.
In his supplemental motion, Mr. Russell also notes that like Mr. French, his counsel had demanded all Brady material be disclosed to the defense. Russell Mot. at 1-3. He joins Mr. Chase and Mr. French in arguing that the information "create[d] a fundamentally unfair trial process." Id. at 3. Haynes Timberland, Inc. adopted the arguments pressed by the other Defendants. Haynes Mot. at 1.
B. The Government's Opposition
In its response, the Government "concedes that it did not provide defense counsel with information about the brief meeting that occurred with McTague's spouse prior to McTague's testimony before the grand jury." Gov't's Opp'n at 3. Nevertheless, the Government argues that the defense "had the information that McTague's spouse provided." Id. at 10. The Government questions how Ms. McTague's concerns about her husband's mental state would have been admissible under the rules of evidence. Id. It further asserts that even if Ms. McTague's information had been admissible, it would have been cumulative. Id. at 10-11. Finally, the Government argues that extensive additional evidence corroborated Mr. McTague's testimony. Id. at 11-12.
C. The Defendants' Replies
In reply, Mr. French counters that the prosecutor's interview with Ms. McTague was not cumulative, and therefore, not immaterial, because it "would have produced impeachment evidence never disclosed to the defense." French Reply at 2-3. According to Mr. French, without this evidence, he "could only generally suggest that Winston McTague's memories were false or challenge Winston McTague's basic truthfulness." Id. at 4-5. Furthermore, he contends that the Government's claim of sufficient corroboration is merely an impermissible "sufficiency of the evidence" argument and does not controvert his assertion that evidence of the interview "undermine[d] confidence in the jury's verdict." Id. at 6.
In Mr. Chase's reply, he points out that because the Government concedes that it did not disclose information regarding the prosecutor's interview with Ms. McTague, the Court need only resolve "whether the suppressed evidence was material (and thus prejudicial) to the defense." Chase Reply at 1-2. Similar to Mr. French's argument, Mr. Chase contends that the evidence was both material and prejudicial because he "would have opened an entirely new line of impeachment by highlighting for the jury Mr. McTague's tendency to overstate, overestimate, and amplify information." Id. at 3. Mr. Chase also agrees with Mr. French that the Government's sufficiency of the evidence argument "is improper" in this context. Id.
III. LEGAL PRINCIPLES
In Brady, the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. In United States v. Connolly, 504 F.3d 206 (1st Cir. 2007), the First Circuit set forth the three components of "an authentic Brady violation": (1) "[t]he evidence at issue (whether exculpatory or impeaching) must be favorable to the accused;" (2) "that evidence must have been either willfully or inadvertently suppressed by the government;" and (3) "prejudice must have ensued." Id. at 212.
In Connolly, the First Circuit clarified that a Brady violation is judged differently than other motions for new trial that are based on freshly discovered evidence. Id. at 212-13. To prevail on a typical newly-discovered evidence motion for new trial, a defendant must establish four elements, the so-called Wright test: (1) "that the evidence was unknown or unavailable to him at the time of trial;" (2) "that his failure to learn of it did not result from a lack of due diligence;" (3) "that the evidence is material, not merely cumulative or impeaching;" and (4) "that its availability is likely to bring about an acquittal upon retrial." Id. at 212 (citing United States v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999); United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980)).
By contrast, when a defendant has made a "colorable claim that he would have had access to the newly discovered evidence but for the government's failure to disclose it, " a "more defendant-friendly standard applies." Id. The movant "still must establish the first two elements of the Wright test"; namely, (1) that the evidence was unknown or unavailable to him at the time of trial; and (2) that his failure to learn of it did not result from a lack of due diligence. Id. at 213. However, the last two elements of the Wright test "are replaced with the unitary requirement that the defendant establish a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Also, "the Wright test demands an actual probability that the result would have differed, whereas the Brady test speaks in terms of something less - a merely theoretical (but still reasonable) probability." Id. (emphasis in original). Finally, the Wright test discounts "merely impeaching" evidence as "immaterial, " but the Brady test allows the consideration of "undisclosed impeachment evidence" and focuses the question on whether "it suffices to undermine confidence in the outcome of the trial." Id.; see also Kyles v. Whitley, 514 U.S. 419, 434 (1995) ("[T]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence"); Bagley, 473 U.S. at 682 (explaining that a "reasonable probability" is one "sufficient to undermine confidence in the outcome" of trial). "This somewhat delphic undermine confidence' formula suggests that reversal might be warranted in some cases even if there is less than an even chance that the evidence would produce an acquittal.'" United States v. Paladin, 748 F.3d 438, 444 (1st Cir. 2014) (quoting Conley v. United States, 415 F.3d 183, 188 (1st Cir. 2005)).
Furthermore, when addressing materiality in the context of Brady, although not a distinct element as under the Wright test, Kyles instructs courts not to conduct "a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." 514 U.S. at 434-35. Instead, a defendant must show "that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 435. Said another way, "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682; Kyles, 514 U.S. at 435 (quoting Bagley with approval). At the same time, "[t]he strength of impeachment evidence and the effect of suppression are evaluated in the context of the entire record to determine materiality. Evidence is immaterial where it is cumulative or merely impeaches a witness on a collateral issue." Paladin, 748 F.3d at 444. In addition, "suppressed impeachment evidence has little probative value if additional evidence strongly corroborates the witness' testimony the suppressed evidence might have impeached.'" Id. (quoting Conley, 415 F.3d at 189). "[T]he burden to demonstrate the materiality of undisclosed evidence rests squarely with" the Defendants. Id. at 445.
IV. WINSTON McTAGUE'S TESTIMONY
A. Direct Testimony
The Government called Winston McTague as its witness and he testified over two days and was extensively and effectively cross-examined. Partial Tr. of Proceedings (Jan. 13, 2014) (ECF No. 414) ( McTague Test. I ); Partial Tr. of Proceedings (Jan. 14, 2014) (ECF No. 415) ( McTague Test. II ). Mr. McTague testified that he was involved in the cultivation of marijuana with Kendall Chase and a man named Mike Smith. McTague Test. I 4:25-5:8. Mr. McTague said that he first met Mr. Chase in 1993 or 1994 during motorcycle trips to New York. Id. 6:3-6. They became friends and grew marijuana together in Danforth, Maine. Id. 6:12-21. He said that after he began growing marijuana with Mr. Chase, someone (perhaps Mr. Chase) introduced him to Malcolm French and Mr. McTague began growing marijuana on Mr. French's land in the town of LaGrange, Penobscot County, Maine. Id. 9:3-19. This was in 2005. Id. 9:20-21.
Mr. McTague said that he grew the marijuana in a swamp near Mr. French's camp in LaGrange. Id. 10:13-11:13. He testified that they "made egg-shaped wire cages" with a "weed barrier" at the bottom running up about one foot on the sides and half a bale of Promix in it. Id. 11:14-19. He estimated that there were between 500 and 1, 000 marijuana plants at the LaGrange property. Id. 12:14-19. He described harvesting the marijuana and placing it in a drying shack on the LaGrange property. Id. 12:20-13:9. He stated that all of the participants helped build the drying shack and that the lumber came from Mr. Chase's portable lumber mill. Id. 13:16-14:1. After deleaving the marijuana plants, cutting the buds off, and getting rid of the stalks, Mr. McTague testified the marijuana was ready to bag. Id. 14:6-14.
Mr. McTague recalled that he was involved in a discussion about the marijuana operation for the year 2006. Id. 14:17-23. The conversation took place at Malcolm French's camp and the participants included Mike Smith, Kendall Chase, and Kevin Chase (Kendall Chase's brother). Id. 12:24-25, 14:17-15:9, 16:1-4. The conversation was about growing marijuana on Mr. French's company property in Township 37 in Washington County, Maine. Id. 16:1-11. Mr. McTague said that he worked with the same people on the marijuana grow operation in both LaGrange and Township 37 during the year 2006. Id. 16:15-22.
Mr. McTague described Mr. Chase and Mike Smith as "the brains" of the operation; they were the ones who knew how to grow marijuana and how to "make it good." Id. 17:1-4. Mr. McTague testified in detail about the cultivation of marijuana plants, where he stayed when he worked in Township 37, where they obtained the materials for the marijuana grow, and how to protect the plants from slugs and woodland animals. Id. 19:2-21:3. Around harvest time, either Mike Smith or Kendall Chase would tell the others when the plants were ready to harvest. Id. 20:11-18. Mr. McTague remembered one large shipment of Promix in particular, which was delivered in front of Berg's T-shirt business; Mr. McTague, Mike Smith, Kevin Chase, and Kendall Chase all loaded the Promix into a trailer and took it to Township 37. Id. 21:4-15.
Mr. McTague helped with the harvesting, and placing the marijuana in buckets, which was transferred into trash cans. Id. 21:16-23. Malcolm French and Kendall Chase and others bagged the marijuana. Id. 21:16-21. Mr. McTague sold ounces of the marijuana, but Kendall Chase and Mike Smith sold larger amounts of marijuana; Mr. McTague testified that the going price was $20, 000 for 10 pounds. Id. 21:24-22:16.
During the 2006 harvest, Mr. McTague injured his right shoulder trying to lift a tree that was blocking a woods road in Township 37. Id. 23:5-14. After that injury, he found it difficult to continue working and he gave up. Id. 23:21-24:1. After he stopped working, Mr. McTague went to Mike Smith and asked him about being paid for his work on the marijuana grow, stating to Mr. Smith that he was supposed to have been paid $1, 000 per week and was also supposed to be given some marijuana. Id. 26:12-23. He had incurred some hospital bills for treatment of his shoulder injury and had been unable to pay them; in fact, he testified that he is still paying those bills. Id. 26:24-27:3.
Also, after he had stopped work on the marijuana grow, he saw a Promix trailer go by, and as a result, he and Mike Smith rode together to Township 37. Id. 27:4-15. When they got to the south gate of Township 37, they parked their motor vehicle and walked to where the Promix trailer was parked. Id. 27:16-19. The Promix trailer was sitting to the south side of the area of the 2006 grow. Id. 27:20-22. Mr. McTague saw people unloading the Promix and testified that the new area of marijuana grow was two to three times larger than the one he had worked on in 2006. Id. 27:25-28:23. At some point, Mr. McTague returned to Township 37 by himself and observed both white and what he thought were Mexican people working in the swamp. Id. 30:1-31:13. He recognized Kendall and Kevin Chase but no one else. Id. 31:14-16.
On June 27, 2007, Mr. McTague was involved in a motorcycle accident. Id. 31:25-32:3. He was in the hospital and was laid up for several months. Id. 32:4-7. He was prescribed three medications he was still using as of the trial. Id. 32:10-19. He went to Mike Smith and asked for help paying his medical bills and Mr. Smith gave him 13 pounds of marijuana. Id. 32:20-33:1. Mr. McTague got no additional financial help from other members of the marijuana conspiracy, a fact that made him "[m]ad." Id. 33:2-5.
In response to this lack of financial help, he decided to tell the police about the Township 37 marijuana grow operation and he sent in a confidential tip on the computer. Id. 33:10-15. A year later, having heard nothing, he sent in another one. Id. 33:16-21. This time some drug agents visited him. Id. 33:24-34-1.
1. Malcolm French
Mr. McTague was cross-examined by each of the Defendants' counsel, first by Attorney McKee on behalf of Malcolm French. Id. 34:25-55:8. Mr. McTague admitted that he had previously worked for Mr. French, hauling logs, around 2004 or 2005. Id. 35:3-11. He said he hauled just three loads of logs for Mr. French. Id. 36:11-12. He denied being fired by Mr. French in 2004 or 2005. Id. 36:17-20. But he agreed that he had complained about not being paid by Mr. French for the three loads he had hauled. Id. 36:21-37:2.
Mr. McTague conceded that even though he was involved with Mr. Chase and Mike Smith in a marijuana grow operation before he became involved with the French operation, he had failed to mention this fact to law enforcement until just a few weeks before trial. Id. 37:10-38:3. Mr. McTague agreed that he had been lying to the Government about his involvement in the earlier marijuana grow operation. Id. 37:25-38:17. Mr. McTague protested that his earlier involvement was just "innocent detail, " that he was not hiding this information from the Government, but that he had "just remembered" it two to three weeks ago. Id. 39:2-23. He later admitted that he had acknowledged to the police on December 17, 2013 that he had lied to them. Id. 48:10-49:7.
When asked about when he had worked on the Danforth operation, Mr. McTague said that it "could have been 1995." Id. 40:13-18. He also said that he "[could not] tell you dates" and that it "could have been" 2003 or 2004. Id. 40:19-25.
Mr. McTague conceded that from 2003 to 2006, he had been paid for his work either in money or in marijuana and that he had not reported that income to the Internal Revenue Service. Id. 42:1-7.
Mr. McTague was also asked about why he had reported the tip to law enforcement. He admitted that he had told law enforcement that he was making the tip to protect his 12- and 8-year-old daughters from people with marijuana. Id. 42:11-23. But he also acknowledged that in fact he "wasn't in it to protect anybody, no." Id. 42:24-43-2. He then said that his protection of his family was "part of the truth." Id. 43:3-7. Mr. McTague agreed that he had told law enforcement that he had gone "undercover" to act as an investigator. Id. 43:8-11. But he conceded that he was "pretty screwed up then, " id. 43:12-14, and he admitted that the part about his being an investigator was not true. Id. 44:8-9.
Mr. McTague was also asked about telling law enforcement in October 2009 that he had been hired by Kendall Chase to stack lumber and remove bark, and that he was going to learn what was going on with the marijuana operation. Id. 44:19-45:7. Mr. McTague admitted that that story conveyed to law enforcement was not true. Id. 45:7-10.
On direct examination, Mr. McTague had said that he had been interviewed by an agent named Steve Sicard, a person he agreed was a big fellow from DEA. Id. 7:20-23. On cross-examination, however, Mr. McTague could not remember Steve Sicard, did not recall that he was a special agent with DEA, and denied that he had testified as such. Id. 47:1-11.
Mr. McTague agreed that he had lost some of his memory as a result of the motorcycle accident. Id. 47:25-48:2. He said that there are some things he can remember and some he cannot. Id. 48:3-6. His ability or inability to recall certain events included those that occurred in 2006. Id.
Mr. McTague agreed that he was testifying under a grant of immunity from the Government. Id. 52:7-8. He said that a grant of immunity means that "as long as I don't lie, can't get busted." Id. 52:11-13. But he also admitted that the Government had agreed not to prosecute him for his involvement over a number of years in marijuana grow operations. Id. 52:14-53:12. He also agreed that the person who would decide whether he told the truth was Joel Casey, the lead federal prosecutor in the case. Id. 53:13-16. He also confirmed that, despite his earlier involvement with Malcolm French, when he was shown photographs of the individuals who had been potentially involved in the marijuana grow operation, he had not been able to pick out Malcolm French. Id. 54:2-55:8.
2. Rodney Russell
Mr. McTague was then cross-examined by Attorney Peterson on behalf of Rodney Russell. Id. 55:14-57:12. Mr. McTague agreed that he had never mentioned Rodney Russell's name to any of the law enforcement officers. Id. 56:16-19. In fact, he said: "I don't know him, and I haven't seen him around when I was there." Id. He agreed that he did not recognize Mr. Russell when he was shown his photograph. Id. 57:8-10.
3. Kendall Chase
Mr. McTague was then cross-examined by Attorney Silverstein on behalf of Kendall Chase. Id. 57:17-83:2; McTague Test. II 3:20-36:23. On cross-examination by Attorney Silverstein, Mr. McTague revealed that he had been diagnosed with traumatic brain injury as a result of the 2007 motorcycle accident. McTague Test. I 57:17-21. Mr. McTague said that his life has changed "100 percent" since the accident. Id. 57:22-24. He explained that he has suffered short-term memory loss and that all of his memories were "like a movie." Id. 57:25-58:3. Even though he agreed that he gets mixed up sometimes, he insisted that he remembered what he remembered. Id. 59:6-10. Mr. McTague conceded that his head injury has caused him to keep worrying and thinking about the same thing over and over again. Id. 65:25-66-4. He also agreed that some of his thoughts are "like a movie that keeps replaying in [his] head." Id. 66:5-11. Mr. McTague also testified about the impact the motorcycle accident has had on his life:
Q. Now, you made an interesting comment the other day and that kind of stuck with me, and you were asked about whether you were mad by Mr. Casey, and you said, I'm stuck in this world. What did you mean by that?
A. I mean, my life ended on 6/27/07, all of my past is erased, everything. I have nothing.
Q. You mean for memories?
A. No, I have nothing anymore.
McTague Test. II 25:5-12.
Mr. McTague agreed that he did not want his wife and their daughters to know about his being extensively involved in the marijuana grow operations and about his cooperation with the police. McTague Test. I 63:16-65:6. He had told his wife that he was involved in growing a little bit of marijuana but not that he was involved more extensively. Id. 64:21-65:6. Mr. McTague admitted that he had not remembered his earlier marijuana involvement when he told the grand jury that the only two seasons during which he had been involved in cultivating marijuana were in 2005 and 2006. McTague Test. II 15:11-16:7.
Mr. McTague was questioned closely about the 2006 discussion at Mr. French's camp about next year's harvest and plans to expand the operation to Township 37. McTague Test. I 70:24-72:12. He agreed that in 2009 he had told the officers that during the 2006 camp visit, Mr. French had told him where to go hunting the next day and while he was hunting, he snooped around and "saw four fellows dressed in camouflage[, ] harvesting marijuana plants." Id. 72:13-73:3. But Mr. McTague said that his conversation with the police had taken place when he was still "freshly injured" and agreed he was "all screwed up." Id. 73:2-7. He later acknowledged that his statement about seeing people cultivating marijuana while he was at the French hunting camp was a lie. McTague Test. II 4:20-24. He agreed that he had repeated that lie even when he met with AUSA Casey around Thanksgiving of 2009, and even though AUSA Casey had instructed him to tell the truth. Id. 4:25-5:13. He also acknowledged that when he told the officers that he had overheard the conversation at the French hunting camp while in bed, he was not telling the truth; in fact, he was in the same room, peeling marijuana. McTague Test. I 81:4-82:6. He also admitted that he had repeated that lie when he was subpoenaed to testify under oath before the grand jury on January 13, 2010. McTague Test. II 12:12-15:10.
Mr. McTague was asked about his testimony before the grand jury in which he testified that he had spoken to Kendall Chase after the hunting camp conversation and Mr. Chase had told him that they would get him involved. Id. 16:11-21. He acknowledged that his grand jury testimony on that point was a lie too. Id. 16:22-23.
Mr. McTague was then asked whether he told the grand jury that Malcolm French had promised him a camp in East Grand and Millinocket, Maine and Mr. McTague denied so testifying. Id. 19:5-8. However, after being shown a portion of his grand jury testimony, Mr. McTague admitted that he had so testified before the grand jury. Id. 19:25-20:2.
Mr. McTague testified that during the motorcycle accident in 2007, he had "hit the roof of a car [go]ing 87 miles an hour with [his] face." McTague Test. I 73:10-19. Since then, he had remembered things funny and explained that his memories "come and go." Id. 74:1-4. In fact, Mr. McTague produced a doctor's note from his wallet, which he carries at all times, that explained he often gets confused. McTague Test. II 6:6-7:15.
Mr. McTague also said that after he spoke with law enforcement and was told that he could get a lawyer, he contacted Kendall Chase and demanded $10, 000 so that he could retain a lawyer. Id. 26:12-27:3. Mr. McTague was closely questioned about his use of the nickname, "Red Patch." Id. 27:11-29:22. Mr. McTague explained that "Red Patch" was his old CB handle (i.e., he used to call himself that on the trucker radio). Id. 27:13-22. Mr. McTague conceded that while using the Red Patch nickname, he had told Mr. Chase via text message that if he did not come up with $10, 000, he would recover his memory when DEA came. Id. 30:1-31:3.
4. Haynes Timberland, Inc.
Mr. McTague was then cross-examined by Attorney Marjerison on behalf of Haynes Timberland, Inc. Id. 38:8-49:9. On cross-examination by Attorney Marjerison, Mr. McTague was asked about the 13 pounds of marijuana that he claimed Mike Smith had given him and was later stolen. Id. 38:11-39:9. Although Mr. McTague expressed some confusion about the dates, he agreed that he failed to tell the Government that the 13 pounds of marijuana had been stolen until his last meeting with the Government. Id. 39:7-13. Mr. McTague claimed that Bruce Smith was the person who stole the marijuana. Id. 40:17-20.
Mr. McTague conceded that in addition to prescribed medication, he has been using medical marijuana. Id. 40:24-43:1. He admitted that his doctor had concerns about his use of medical marijuana, but he insisted that what has happened since has "proved him wrong." Id. 42:24-43:5.
Mr. McTague testified that when he was involved in the motorcycle accident, he was not wearing a helmet. Id. 43:14-15. Mr. McTague was also questioned regarding his friends and family's opinion of his memory since the accident. The following exchange took place:
Q. And people have told you you're different since this... motorcycle accident; is that correct?
A. 100 percent.
Q. Yeah. And, in fact, people - your friends and family have tried to tell you that you're misremembering events that occurred prior to the accident, correct?
A. My peers telling me now?
Q. Let me re - I'll withdraw the question. I'm going to rephrase it. Okay? I'm not trying to confuse you. Your friends and family have told you you have difficulty remembering accurately events that occurred prior to the accident, correct?
A. No, nobody's - family hasn't told me that, no.
Q. Okay. Well, don't they try to help you remember what - things that happened that you can't remember?
A. Well, yeah.
Mr. McTague could not remember whether the Government had asked him questions about his medical treatment following his motorcycle accident, or whether the Government had requested medical records regarding his treatment. Id. 46:8-21. Although this testimony was confusing, Mr. McTague at one point said that he had shown the medical explanation card to the Government, but they had told him that they did not want to see it. Id. 47:9-16.
Following up on Mr. McTague's testimony from the day before, Attorney Marjerison asked him about his memories being like a movie. Even though Mr. McTague had testified the day before that his memory was like a movie playing in his head, he denied having said "movie." Compare McTague Test. I 58:2-3 ("Shortterm memory loss and all my memories are like a movie"), with McTague Test. II 44:8-11 ("Nah, I didn't say a movie").
C. Redirect Examination
On redirect examination, AUSA Casey asked Mr. McTague about certain text messages he had written to Mr. Chase concerning his demand for $10, 000 cash. McTague Test. II 49:19-52:7.
1. Malcolm French
On recross-examination by Attorney McKee, Mr. McTague was asked about his reference to an insurance payment in his text messages to Mr. Chase, and Mr. McTague explained that the reference to insurance was to his "bike money." Id. 52:15-53:4. Mr. McTague was asked whether he was blaming people for not getting his bike insurance money and he replied: "I don't know what I was doing." Id. 53:5-7. Mr. McTague also confirmed that he had been charged and convicted of operating under the influence as a result of the June 27, 2007 motorcycle accident. Id. 54:2-19.
He was also questioned closely about the number of people who were involved in building the drying shack on Mr. French's LaGrange property and potential contradictions with his grand jury testimony about Malcolm French's participation in the building of the shack. Id. 57:21-61:9.
2. Rodney Russell
Attorney Peterson asked no further questions on recross-examination on behalf of Rodney Russell. Id. 61:11-12.
3. Kendall Chase
Mr. McTague was then questioned by Attorney Silverstein on behalf of Mr. Chase about his memory problems, and ultimately, he agreed that when he texted Mr. Chase, he was basically threatening him if ...