United States District Court, D. Maine
ORDER ON RODNEY RUSSELL’S MOTION FOR NEW TRIAL
JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE.
A Defendant awaiting sentence has moved for a new trial based on assertions that the prosecutor misstated the evidence during his closing argument and rebuttal. The Court denies the Defendant’s motion for new trial because it was filed twenty months late and because there is no excusable neglect for the late filing. Assuming the Court should reach the merits, however, the Court concludes that the prosecutor’s argument both in closing and rebuttal was based on the evidence or upon inferences that could reasonably be drawn from the evidence and that the Defendant has demonstrated no impropriety.
A. Superseding Indictment, Trial, and Conviction
On September 14, 2012, a federal grand jury indicted Malcolm A. French, Rodney Russell, Kendall Chase, and Haynes Timberland, Inc. for a set of federal crimes. Indictment (ECF No. 2). On November 13, 2013, in relevant part, a grand jury 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. Superseding Indictment (ECF No. 187).
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). As to the drug trafficking conspiracy as a whole, the jury found beyond a reasonable doubt that it involved 1, 000 or more marijuana plants; the jury also found beyond a reasonable doubt as to Defendants Malcolm French and Rodney Russell, their individual conduct involved 1, 000 or more marijuana plants. Id.
B. Procedural History
On October 18, 2015, Mr. Russell filed a motion for new trial. Def. Rodney Russell’s Mot. for New Trial and Withdrawal of all Joinder with Claims the Gov’t Suborned Perjury (ECF No. 590) (Def.’s Mot.). On October 21, 2015, the Government responded to Mr. Russell’s amended motion. Gov’t’s Obj. to Def. Russell’s Mot. for New Trial (ECF No. 594) (Gov’t’s Opp’n). Mr. Russell has not filed a reply to the Government’s response.
II. THE PARTIES’ POSITIONS
A. Rodney Russell’s Motion
Mr. Russell’s motion for new trial is “based on seven discrepancies defendant Russell has noticed between the trial evidence and the Government’s closing and rebuttal arguments.” Def.’s Mot. at 1-2.
First, oddly, in his motion for new trial, Mr. Russell objects to the supervisor enhancement under the United States Sentencing Guidelines § 3B1.1(b) in the Presentence Report, an argument that addresses a sentencing issue. Def.’s Mot. at 3-4 (citing Presentence Investigation Report ¶¶ 31-32). As this is a sentencing issue, the Court has not considered it in resolving Mr. Russell’s motion for new trial.
Next, Mr. Russell turns to six statements in the Government’s closing and rebuttal arguments that he maintains entitle him to a new trial. He describes the arguments as “not well-founded.” Id. at 4-6. First, he says that during the closing argument, the Government’s attorney argued that significant weight gain- “put[ting] on thirty to forty pounds between the dates of delivery and trial”- prevented a particular witness from identifying him. Mr. Russell, however, claims to have gained only six pounds: “between January 30, 2007 and September 11, 2013, his weight fluctuated between 176 pounds and 182 pounds.” Id. at 4. Therefore, he argues there was no basis for the Government’s argument about his weight gain.
Second, Mr. Russell objects to the Government closing argument that his DNA was not found at the grow site because he may have burned it. Id. at 5. He contends that this was not a justified inference.
Third, he criticizes the Government’s argument that Mr. Russell warned Moises Soto to stay in Mexico and not to return to Maine. Id. He says there is no evidence supporting the Government’s assertion. Id.
Fourth, he contends the Government’s argument that Scott MacPherson was destitute and lacked the means to make cash payments to Griffin Greenhouse for PRO-MIX was unfounded. Id.
Fifth, he disagrees with the Government’s suggestion that he had the time to spend on the grow operation. Id. at 5-6. He says that his medical problems and his presence at Mr. French’s LaGrange garage belie these arguments. Id.
Finally, Mr. Russell maintains that the Government made “an unfair comment on his testimony” by branding “incredulous” the notion that anyone would resell PRO-MIX. Id. at 6.
Mr. Russell moves for new trial pursuant Rule 33(b)(2), which he concedes requires the motion to be filed within fourteen days after the verdict. Id. at 6 (citing Fed. R. Crim. P. 33(b)(2)). Referring to Rule 45(b)(1)(B), however, Mr. Russell “avers that excusable neglect for late filing can be shown by the pendency of this matter, which pendency has not been caused by him, as well as by his inability to track down trial transcripts.” Id. (citing Fed. R. Crim. P. 45(b)(1)(B)). Mr. Russell puts forth a substantive legal test for determining whether the Government’s supposedly improper closing argument “so poisoned the well that a new trial is required”: “(1) the extent of the improper remarks, (2) the context, (3) the likely effect of any curative instructions given by the judge, and (4) the weight of the evidence against the defendant.” Id. at 7 (citing United States v. Carpenter, 494 F.3d 13, 23 (1st Cir. 2007)). According to Mr. Russell, the enumerated discrepancies caused “the well of evidence considered by the jury [to be] poisoned beyond purification.” Id.
B. The Government’s Opposition to Mr. Russell’s Amended Motion
In its opposition, the Government stresses that Mr. Russell’s Rule 33(b)(2) motion comes 632 days after his conviction and is 618 days past due. Gov’t’s Opp’n at 1, 3, 4, 5. The Government argues the following ...