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United States v. French

United States District Court, D. Maine

November 17, 2015

UNITED STATES OF AMERICA
v.
MALCOLM A. FRENCH, et al.

ORDER DENYING DEFENDANT FRENCH’S THIRD MOTION FOR NEW TRIAL; DEFENDANT CHASE’S AMENDED MOTION FOR NEW TRIAL; AND DEFENDANT RUSSELL’S MOTION FOR NEW TRIAL

JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE

After a multi-week jury trial on January 24, 2014, a federal jury convicted Malcolm French, Rodney Russell, and Kendall Chase of a number of offenses involving the manufacture and distribution of marijuana. On July 31, 2015, Malcolm French filed a third motion for new trial, which Mr. Russell and Mr. Chase soon joined in part. The motion was based on the contents of an anonymous note that Mr. French’s son found in late March 2015 in a desk in a scale shack on property owned by Mr. French’s business. Bolstered by the anonymous note, Mr. French issued a broadside against the Government’s case, alleging egregious discovery violations, perjury of law enforcement officers, perjury of a key Government witness, and prosecutorial misconduct, all of which they claim mandates a new trial. As Mr. French’s allegations are so serious, including allegations of prosecutorial misconduct, the Court has undertaken a detailed analysis of his claims.

The Court has concluded (1) that the contents of the anonymous note do not provide a proper basis for a new trial; (2) that much of the contents of the anonymous note are either demonstrably false or unsupported by the extensive record in this case; (3) that to the extent the anonymous note proclaims Mr. French’s actual innocence of the crimes of which he has been convicted, it is manifestly contrary to the jury verdicts in this case and the evidence upon which the verdicts were based; (4) that none of Mr. French’s arguments touched on the marijuana grow operation in Township 37, which provides a separate and independent basis for each conviction; (5) that there is no evidence in this record from which the Court could reasonably conclude that law enforcement, the Government witness, or the federal prosecutor knew the information about the Prentiss & Carlisle grow that the Defendants now claim should have been disclosed; and (6) that the forfeiture verdicts accepted the Defendants’ current contention that they were not involved in manufacturing marijuana at the LaGrange grow. Accordingly, the Court denies the Defendant’s third motion for new trial. Subsumed in the Court’s denial of Mr. French’s motion for new trial is a denial of Mr. Chase’s and Mr. Russell’s motions for new trial to the extent they joined Mr. French’s motion. Finally, the Court denies Mr. Chase’s request for a Franks[1] hearing.

I. A BRIEF OVERVIEW [2]

The facts underlying Mr. French’s motion for new trial are dense and therefore a preliminary overview may be useful. The indictment in this case charged Malcolm French, Rodney Russell, and Kendall Chase with engaging in a conspiracy to manufacture 1, 000 or more marijuana plants. It also charged Haynes Timberland, Inc. with maintaining a drug involved place. Mr. French and his wife are the owners of Haynes Timberland.

A. Geography

Two main geographic locations are involved. The primary focus of the Government’s case against all these Defendants was a large marijuana grow on Haynes Timberland property in Township 37 in Washington County, Maine. Washington County is the easternmost county in Maine, bordering Canada to the east, the Gulf of Maine to the south, and three Maine counties to the north, northwest, and west. Township 37 is in the easternmost part of Maine, fairly close to the Canadian border. Haynes Timberland’s holdings in Township 37 were substantial; Mr. French testified that they owned over 38, 000 acres.

The second location was LaGrange, Maine, a town in Penobscot County. As the crow flies, LaGrange is located about seventy miles west of Township 37.[3]Malcolm French owned property in LaGrange and built a hunting camp on the property around 2003. Mr. French bought this land in two transactions, a purchase of one parcel in 1990 from Dixie Lands Corporation and a second purchase of three parcels in 1994 from Diamond Occidental Forest, Inc. Gov’t Exs. 180, 181. The deeds for these transfers to Mr. French were admitted into evidence, but they do not establish the size of the combined parcels, id., and the Gordon survey submitted by Mr. French does not delineate the metes and bounds of all the French parcels in LaGrange.

Two other parcels are important for purposes of this motion.[4] First, a parcel owned by the University of Maine abutting Mr. French’s LaGrange parcel to the immediate east; based on the Gordon survey, the Court roughly estimates that the University parcel is 1, 750 by 3, 000 feet. Abutting the University of Maine parcel, halfway down the University parcel and to its immediate east, there is a lot owned by Prentiss & Carlisle, a Maine timber management company. The Gordon survey does not show all the boundaries of the Prentiss & Carlisle parcel, but the northern boundary of that parcel is over 4, 500 feet long.

In summary, proceeding from west to east, the Gordon survey shows a parcel owned by Mr. French, then a smaller parcel where the French camp is located owned by Mr. French, the University of Maine lot, and midway on the east side of the University parcel are two abutting parcels, the northerly one owned by Mr. French and the southerly one owned by Prentiss & Carlisle. Still going easterly, Mr. French owns the next parcel as well; this parcel abuts the town lines of both Howland and Edinburgh, Maine.

B. Township 37

The bulk of the Government’s case addressed its allegation that Mr. French, Mr. Russell, and Mr. Chase were involved in growing marijuana in Township 37 and distributing that marijuana. Mr. French’s motion, however, does not directly address the Government’s Township 37 case. Nevertheless, in his motion, Mr. French demands a new trial on all charges based on the argument that, if proved true, his allegations would have had a spillover effect on the legitimacy of the verdict as a whole.

C. LaGrange

The focus of Mr. French’s motion is the Government’s allegation that he and his co-conspirators were also growing marijuana on Mr. French’s LaGrange lot. When law enforcement officials executed a search warrant on his LaGrange property in the fall of 2009, they came upon an old marijuana grow on Mr. French’s LaGrange property. The exact location of this grow is not entirely clear. Some witnesses said it was about 300 yards from Mr. French’s hunting camp and others said it was about a mile from the camp.[5] In any event, all witnesses agreed that it was located to the west of the French hunting camp.

D. Winston McTague and the Location of the LaGrange Grow

A central witness for the Government was a man named Winston McTague. Mr. McTague had tipped off law enforcement about the Township 37 and LaGrange marijuana grows. At trial, Mr. McTague testified that he had grown marijuana with Kendall Chase in the past and had worked with Mr. French and Mr. Chase on the Township 37 and LaGrange marijuana grows. He did not implicate Mr. Russell.

Mr. McTague repeatedly described the LaGrange marijuana grow as being on Mr. French’s property. But he also described the location of the LaGrange marijuana grow in reference to the front door of Mr. French’s camp. The front door of the camp was oriented roughly toward the north. Mr. McTague said that, if a person stood at the front door of the French hunting camp, the LaGrange grow was located at three o’clock, which would put the grow toward the east, in the direction of the University of Maine and Prentiss & Carlisle lots, and not toward the west, in the direction of the actual location of the LaGrange grow. He also said that to get to the site, a person had to cross a boundary line marked in red and that the grow site had a drying shack and a green tarp.

E. Malcolm French’s Testimony

Mr. French took the stand in his own defense. He testified that he was not involved in either the Township 37 or the LaGrange marijuana grows.[6] He said that in 2005 Steve Benson, who was hauling brush for Mr. French, came upon the LaGrange grow and that, after Mr. Benson’s discovery, a man named Mike Smith came to Mr. French, accused him of disturbing the LaGrange marijuana patch, which Mr. Smith told Mr. French was being operated by the so-called Red Patch Gang. Mr. French testified that Mr. Smith extorted reparations from Mr. French.

F. The Anonymous Note

Mr. French’s motion claims that in March 2015, Thomas French, Mr. French’s son, discovered an anonymous note in one of his father’s business’s scale shacks. The anonymous note claimed-among many other things-that the people who had started the LaGrange grow on Mr. French’s land had abandoned that marijuana grow site and had moved it to “state college land.” After reading the anonymous note, Thomas French set about trying to locate this other marijuana grow. He found it, not on the University of Maine parcel, but on the Prentiss & Carlisle parcel about a mile from the French hunting camp as the crow flies or three miles over land.

G. The Accusation The heart of Mr. French’s accusation is that law enforcement and the federal prosecutor knew all along about the Prentiss & Carlisle grow and that they hid this vital information from the defense. Mr. French bases his allegations on the following:

(1) Mr. McTague’s repeated directions to the LaGrange grow, namely to the east, not west, of the French hunting camp;
(2) Mr. McTague’s physical description of the LaGrange grow, including red boundary marks, a green tarp, and a drying shack, none of which was present in the old LaGrange grow;
(3) the disparity in the actual distances between the French hunting camp and the LaGrange grow (about 300 yards to one mile) and the French hunting camp and the Prentiss & Carlisle grow (one mile by straight line or three miles by land);
(3) the AUSA’s trial questioning of Mr. McTague, which-according to Mr. French-steered Mr. McTague away from the Prentiss & Carlisle grow and back to the LaGrange grow;
(4) after law enforcement officials had located the LaGrange grow, their continued searching of the area by helicopter for a grow, suggesting that law enforcement was aware of a second grow somewhere around the French hunting camp; and
5) an allegation that two law enforcement officers actually located the Prentiss & Carlisle grow on October 6, 2009 and failed to report their discovery in their police reports.

In addition to his allegations of prosecutorial misconduct, Mr. French argues that the known and undisclosed existence of the Prentiss grow affected the fairness of the trial in three major ways. First, he contends that it deprived Mr. French of the ability to confirm that there was a second larger marijuana grow not located on his LaGrange property, which would have supported his testimony that the Red Patch gang was behind the grows. Second, he says it deprived him of the ability to cross-examine Winston McTague and law enforcement witnesses about the existence of the Prentiss & Carlisle grow and a supposed conflict with their sworn testimony, which would have eroded their credibility and demonstrated that they had lied. Finally, it is Mr. French’s view that the prosecutor’s deliberate hiding of the crucial evidence of the Prentiss & Carlisle grow was motivated by the Government’s desire to forfeit Mr. French’s LaGrange land to the Government itself by convincing the jury that the only marijuana grow in LaGrange was located on Mr. French’s land. He claims that the absence of this evidence did not allow the defense to make a persuasive argument of governmental overreaching.

H. The Court’s Conclusion

The Court emphatically rejects Mr. French’s contentions. First, to the extent that Mr. McTague described the LaGrange grow as being east of the French hunting camp, being after blazed property lines, and containing a green tarp and drying shack, during discovery, the Government turned over to the Defendants Mr. McTague’s multiple descriptions of the location of the LaGrange grow. When he repeated these directions at trial, for whatever reason, defense counsel elected not to cross-examine him on this point. Mr. French may not complain about the Government hiding information that it supplied him.

Second, the difference between the LaGrange marijuana grow that law enforcement found and Mr. McTague’s description of the grow does not prove that law enforcement knew about the Prentiss & Carlisle grow. What was important to the police is that there was in fact a marijuana grow on Mr. French’s LaGrange property located somewhere between 300 yards and a mile from his hunting camp, a fact that no one disputes. As the LaGrange grow was by all accounts an old grow, it would not be shocking not to find the drying shack or a green tarp. As for the red boundary marks, if Mr. McTague had turned east to travel west, it would be unremarkable that he encountered some boundary marks on his way to the LaGrange grow.[7]

Third, despite the hyperbolic and aggressive rhetoric in Mr. French’s motion, the Court finds no support whatsoever for his claim that law enforcement and the federal prosecutor knew about the Prentiss & Carlisle grow and failed to reveal it. There is, in the Court’s view, no basis at all for Mr. French’s accusations of unprofessional conduct against the federal prosecutor and the law enforcement officials who investigated this case. The Court firmly and absolutely rejects those false accusations.

In short, the Court concludes that Mr. French’s motion must fail because it falls hard of its own weight.

II. BACKGROUND

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, 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 indicted Haynes Timberland, Inc. for managing and controlling a drug-involved place.[8] 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). 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. The Pending Motions

On July 31, 2015, Malcolm French moved for a new trial based on an anonymous note giving rise to newly discovered evidence that the actual LaGrange grow site is different from the grow site to which Government witness Winston McTague testified and is not located on Mr. French’s property. Def. French’s Mot. for New Trial at 2 (ECF No. 554) (French Mot.). Mr. French moved for a new trial on “individual and cumulative” grounds with respect to six legal claims: “(1) newly discovered evidence; (2) newly discovered perjury; (3) government use of perjured testimony; (4) Brady violations; (5) mis-characterization of evidence; and (6) prosecutorial misconduct.” Id. at 3. On August 1, 3, and 5, 2015, Kendall Chase, Rodney Russell, and Haynes Timberland, Inc., respectively, joined Mr. French’s motion for new trial. Def. Chase’s Notice of Joinder to Def. French’s Mot. for New Trial dated July 31, 2015 (ECF 555); Def. Rodney Russell’s Notice of Joinder to Def. French’s Mot. for New Trial dated July 31, 2015 (ECF 556); Def. Haynes Timberland, Inc.’s Notice of Joinder to Def. French’s Motion for New Trial dated July 31, 2015 (ECF 561). On August 7, 2015, the Government responded. Gov’t’s Obj. to the Def.’s Third Mot. for New Trial (ECF 563) (Gov’t’s Obj.). On August 21, 2015, Mr. French replied to the Government’s opposition. Def. Malcom French’s Reply to the Gov’t’s Obj. to the Def.’s Third Mot. for New Trial (ECF 576) (French Reply).

Two of the defendants later filed amended motions for new trial to distinguish in certain respects their claims from Mr. French’s motion and to add new legal claims. On October 8, 2015, Mr. Chase filed an amended motion. Def. Kendall Chase’s Am. Mot. for New Trial (ECF No. 588) (Chase Am. Mot.). On October 13, 2015, the Government responded to Mr. Chase’s amended motion. Gov’t’s Obj. to Def. Chase’s Am. Mot. for New Trial (ECF No. 589) (Gov’t’s Obj. to Chase). Mr. French himself responded to Mr. Chase’s amended motion and joined Mr. Chase’s Brady and French motions on October 21, 2015. Def. Malcolm French’s Resp. to Def. Kendall Chase’s Am. Mot. for New Trial and Joinder of Brady/Franks Mot. (ECF No. 595) (French’s Resp. to Chase). Finally, on October 18, 2015, Mr. Russell joined Mr. Chase’s amended motion for new trial and filed his own motion for new trial.[9] Def. Rodney Russell’s Mot. for New Trial and Withdrawal of all Joinder with Claims the Gov’t Suborned Perjury (ECF No. 590) (Russell 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 to Russell).

III. THE PARTIES’ POSITIONS

A Third Motion for New Trial

1. Mr. French’s Motion

a. Facts Alleged

An anonymous note provides the impetus for Mr. French’s motion for new trial. In his motion, Mr. French claims that in late March 2015, Thomas French-the Defendant’s son-found a note “claim[ing] that the LaGrange marijuana grow was not, as alleged by the government, and testified to by its witnesses, located on Mr. French’s property, but on an adjacent parcel of land.” French Mot. at 2.[10] Thomas French said he found the note “in a corner, under and to the left of the desk in the scale shack, which is the trailer weighing station in LaGrange, Maine for my father’s company.” French Mot. Attach. 20 Aff. of Thomas French, at 1 (ECF 554). He states that the “door [to the scale shack] is never locked.” Id. In relevant part, the note refers to a grow site instead located “on the state college land.” French Mot. Attach. 2 Anonymous Note, at 1 (ECF 554) (Anonymous Note).

According to the Defendant, on May 18, 2015, a private investigator and surveyor working with the defense searched for the site described in the note. French Mot. at 4. They discovered a grow site fitting “not only the description of the LaGrange grow in the Note” but also “the description of the LaGrange grow provided by Winston McTague in his tips and grand jury testimony.” Id. Thus, Mr. French argues there are two distinct grow sites: the so-called “Rolfe Grow, ” on which his conviction rests, is “about 300 yards from the French LaGrange cabin running to the northwest, ” id. at 7; and the so-called “Prentiss Grow, ” found pursuant to the note, is “about one mile from the French camp as the crow flies and 3 miles by road and path.” Id. at 5 (footnote omitted). See also Id. Attach. 3 Gordon Survey, at 1 (ECF 554) (Gordon Survey) (survey map showing two grow sites); id. Attach. 4 Aerial Photo, at 1 (ECF 554) (aerial photograph showing same). For clarity, this Order refers to the former as the Rolfe grow site and the latter as the Prentiss grow site.

Mr. French asserts that there are three major differences between the Rolfe and Prentiss grow sites: distance, direction, and the presence (or absence) of unique markers. The first two relate to location. Regarding distance, the Prentiss grow site is farther from Mr. French’s cabin than the Rolfe grow site. French Mot. at 5, 7. Regarding direction, the Prentiss grow site is to the right (south-southeast) of the cabin, and the Rolfe grow site is to the left (northwest). Id. at 13. Finally, Mr. McTague’s tips and grand jury testimony mentioned the unique markers of a red boundary line and a drying shack with a green tarp. Id. at 6-7. While “there are no remains of a drying shack ‘near’ the [Rolfe] grow, nor is there a ‘blazed line, ’” id. at 7, the Prentiss grow “is near a painted boundary line, and has the remains of a drying shack with a ‘fir green’ tarp.” Id. at 5.

Put simply, Mr. French argues that Mr. McTague changed his story about the location of the French conspiracy marijuana grow and that the Government knew, and encouraged, his doing so. According to Mr. French, Mr. McTague referred to the Prentiss grow site in his tips and grand jury testimony and to the Rolfe grow site in his trial testimony. Thus, “[Mr.] McTague provided perjured testimony at trial conforming his testimony to that of [Special Agent] Rolfe’s testimony for the purpose of securing the conviction of the defendant . . . .” Id. at 7.

Mr. French also accuses the Government of knowing about Mr. McTague’s perjury. In particular, he observes that an examination of the chronology of searches pursuant to Mr. McTague’s tip reveals that the Government continued searching for grow sites after it had found the Rolfe grow site. Id. at 7-8. From this, Mr. French infers the Government did not think it had located the site described in the tip. Id. He also objects to the fact that those conducting the later searches, State Police Officer Chad Fuller and Maine Drug Enforcement Agent Jon Richards, did not file reports on their findings.[11] Id. at 8, 13. Regarding the prosecution, Mr. French alleges Assistant United States Attorney (AUSA) Joel Casey “was conscious of what he was doing” in avoiding the supposed discrepancy in Mr. McTague’s testimonies. Id. at 15.

b. Legal Framework

Noting that “new trial standards vary depending on the evidence, ” Mr. French sets out three legal standards he deems relevant to the alleged facts. Id. at 16. First, the Wright standard requires that the evidence “was unknown or unavailable to [defendant] at time of trial”; that his “failure to learn of it did not result from lack of due diligence”; that “the evidence is material”; and that “its availability is likely to bring about an acquittal upon retrial.” Id. (alteration in original) (quoting United States v. Connolly, 504 F.3d 206, 212 (1st Cir. 2007)).

Second, the Brady standard as applied “under the Rule 33 new trial rubric” requires that the evidence “at issue (whether exculpatory or impeaching) must be favorable to the accused”; that it “have been willfully or inadvertently suppressed by the government”; and that “prejudice must have ensued.” Id. at 17 (quoting Connolly 504 F.3d at 212).

Third, the “use of perjured testimony” standard “requires that a defendant ‘show that there is a reasonable likelihood that the false testimony could have affected the judgment of the jury.’” Id. (quoting United States v. González-González, 258 F.3d 16, 22 (1st Cir. 2001)).

Having set out these standards, Mr. French contends there is a disagreement within First Circuit as to which standard applies to his facts: the four-part Wright standard or the tripartite Brady standard. Specifically, the disagreement focuses on whether Wright’s requirement of due diligence remains where the new evidence also involves Brady violations. Mr. French acknowledges that there is caselaw applying Wright in such situations. Id. at 19 (citing Connolly, 504 F.3d 206; González-González, 258 F.3d 16). But he asserts the proper view “simply applie[s] the three pronged U.S. Supreme Court test [(i.e., Brady)] rather than the traditional newly discovered evidence standard [(i.e., Wright)], ” id. at 19 (citing United States v. Conley, 249 F.3d 38 (1st Cir. 2001); United States v. Mathur, 624 F.3d 498 (1st Cir. 2010)). Thus, he “urges this Court to apply the correct standard as set forth in Conley, and Mathur . . . and not apply a due diligence requirement.” Id. at 20.

Likewise, on his claim that the Government knowingly used perjured testimony, Mr. French urges the Court not to “us[e] the Wright test requirement [of due diligence] in any way, but rather [to] apply the Supreme Court’s mandated standard, which is simply whether the use of perjured testimony could in any reasonable likelihood have affected the judgment of the jury.” Id. at 21 (citing Giglio v. United States, 405 U.S. 150 (1972)).

c. Argument

i. Wright Test

Although he contends the Wright standard is not on-point, Mr. French asserts the fresh evidence (i.e., the anonymous note leading to the new grow site) meets that standard nonetheless. Id. at 21. On the first prong, he argues the evidence was unknown to him at the time of trial, given the voluminous record and the unreliability of Mr. McTague. Id. at 21-22. On the second prong, he argues that due diligence is a “context-specific concept” to be measured by a standard of “ordinary diligence, ” id. at 22-23 (citations omitted), and that in this context the Government’s misrepresentations-as opposed to a lack of due diligence on his part-prevented him from discovering the new grow site. Id. at 24-26. On the third prong, he argues the new grow site is material due to its location on college land, which “undercuts the entire theory of the prosecution that [he] was the boss because the grows were always on his land.” Id. at 27. On the fourth prong, regarding the likelihood of acquittal upon retrial, Mr. French argues in a similar vein that the Government’s claim that he provided the land “permeates all other aspects of this case, ” id. at 27, which otherwise rests on scant evidence and unreliable witnesses. Id. at 28-32. Thus, he says, the forfeiture would have to be reversed, id. at 28, and the conviction would likely be so too. Id. at 27-28.

ii. Brady Test

Mr. French finds Brady issues “[i]nherent in the newly discovered evidence, perjury, and mischaracterization claims.” Id. at 41. Specifically, he points to the Government’s failure to provide Special Agent Fuller’s report, Special Agent Richards’s report, “notes of change in testimony of McTague regarding the location of LaGrange grow, ” and “other possible violations pending outcome of current Brady discovery motion.” Id. Mr. French reminds the Court that a prior Brady violation occurred in this case and urges the Court to consider that violation and the newly alleged violations cumulatively to “meet the necessary standard requiring a new trial.” Id. at 42.

iii. Perjured Testimony and Prosecutorial Misconduct

Mr. French expounds at length on the unreliability of Mr. McTague, “the government’s central witness, ” whose dishonesty or confusion “should have been crystal clear to the government.” Id. at 32, 35. Mr. French concludes:

Certainly confidence in the verdict is undermined by perjured trial testimony fitting snugly, for the first time, with the prosecutor’s case. This is not a case where a witness simply changed his testimony, it is a case where the testimony was “conformed” to meet with the government’s theory of the case. It was changed subtly, but markedly, and with the assistance of the government’s own leading questions. Any confidence in the jury verdict has been severely and irreparably compromised.

Id. at 40. Mr. French argues that in addition to supposedly mischaracterizing the evidence as described in the above passage, the prosecution “turn[ed] justice on its head and us[ed] false testimony at closing for corroboration.” Id. at 44. Mr. French urges a new trial on these grounds.

2. The Government’s Opposition to Mr. French’s Motion

The Government agrees that the Wright test applies to newly discovered evidence. Gov’t Obj. at 11. But it applies a different test where Government suppression of Brady material prevented an earlier discovery of such evidence; there, the Government cites Connolly for the proposition that the first two prongs of Wright (unknown at trial, not from lack of due diligence) remain intact while the second two prongs (materiality, likelihood of acquittal upon retrial) merge into a single inquiry: whether there is a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. Moreover, the Government asserts that if the witness perjured himself and “the government’s use of that testimony was unwitting, ” the Wright test applies without alteration. Id. at 11-12 (quoting González-González, 258 F.3d at 21). If the witness perjured himself and “there is a colorable claim” the government knowingly used that testimony, the Brady test applies. Id. at 12 (quoting González-González, 258 F.3d at 21-22).

At the outset, the Government argues the anonymous note “is inadmissible hearsay and not evidence at all.” Id. at 2. Addressing Mr. French’s claim that Mr. McTague perjured himself by first saying the grow site was to the left of the camp and later saying it was to the right, the Government asserts Mr. McTague’s testimony consistently indicated the grow site was to the right. Id. at 6-7, 14. Because “the primary factual predicate for [his] motion is not present, ” the Government urges the Court to deny the motion without a hearing. Id. at 13. It also points out that Mr. French bases his motion on facts he had at trial, so his claim cannot constitute newly discovered evidence. Id. Regardless, the Government says, the motion is untimely. Id.

The Government views Mr. French’s Brady claims as baseless. It had already produced Special Agent Fuller’s helicopter search and the fact that he saw no marijuana in the Weaver affidavit. Id. at 9, 17. Further, the Government maintains that Mr. French misreads Special Agent Richards’s statement that he “found the area described by the tipster, ” also in the Weaver affidavit, as a “smoking gun” showing he had “stumble[ed] upon” the Prentiss grow site. Id. at 9. Rather, a “common sense reading” of Special Agent Richards’ statement shows that he merely “found what he believed to be the parcel of French land described by the tipster” based on a gate and a sign, which he then offered to corroborate the tip for the purpose of getting a search warrant. Id. at 9-10, 14. Finally, the Government has no notes on a change in Mr. McTague’s testimony because it denies any such change occurred. Id. at 10, 14.

3. Mr. French’s Reply

Mr. French renews his arguments regarding the direction (to the left) and distance (far from camp) of the Prentiss and Rolfe grow sites, and he accuses the Government of deliberately misconstruing these points as well as erroneously asserting it is a defendant’s duty to discover perjury on cross-examination instead of the Government’s duty to disclose such information. French Reply at 1-4. He then labels the Government’s responses to his Brady claims “specious” as “continu[ing] on with the fabrication that [Mr.] McTague was at all times describing the [Rolfe] grow . . . .” Id. at 4-5. Moreover, regarding his possession at the time of trial of the facts giving rise to the present motion, Mr. French argues he cannot be made to “sift through thousands and thousands of pages of discovery” in a game of hide and seek for Brady material; for similar reasons, he cannot be found to have lacked due diligence. Id. at 5-6. Mr. French insists that he would have raised the presence of the Prentiss grow site at trial had he known of its existence, id. at 9, and dismisses the Government’s claim that the Prentiss grow site may come into existence since Mr. McTague’s tip. Id. at 6-7.

B. The Defendants’ Amended Motions

1. Mr. Chase’s Amended Motion

In his amended motion for new trial dated October 8, 2015, Leonard Sharon, Mr. Chase’s counsel, writes that when United States Attorney Thomas Delahanty II informed him of the nature of Mr. French’s allegations against the prosecution, Mr. Sharon’s “jaw dropped” and he admitted to being unaware of evidence that would support such allegations. Chase Am. Mot. at 1-2. Mr. Sharon, on behalf of Mr. Chase, withdraws any claim that the Government suborned perjury.[12] Id. at 2.

Nevertheless, Mr. Chase continues to press his claim of a Brady violation. He submits that for Brady purposes the law requires the Court to define the Government “as a collective body that includes all agents working on the case.” Id. at 3 (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995); United States v. Casas, 356 F.3d 104, 116 (1st Cir. 2004); United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)). After making this point, he urges the Court to apply the three-part Brady test: (1) exculpatory or impeaching evidence favorable to the accused (2) that was willfully or inadvertently suppressed by the government and (3) prejudice ensued. Id. at 3-4 (citing French Mot. at 13). Regarding the first prong, Mr. Chase relies on the evidence in Mr. French’s motion and writes that “[t]here is no need to reiterate here the evidence that was not turned over to the defense.” Id. at 4. If the Court finds such evidence existed, Mr. Chase invites the Court to find the second and third prongs have been met as well.

Mr. Chase introduces a new legal claim in the form of an alleged Franks violation. According to Mr. Chase,

when a defendant makes a preliminary showing that exculpatory evidence is knowingly and intentionally, or with a reckless disregard for the truth, omitted from an affidavit seeking a warrant; or that false and misleading information is provided to the issuing authority in such an affidavit, the defendant is entitled to an evidentiary hearing to prove such omissions or false inclusions existed.

Id. at 5 (citing Franks, 438 U.S. at 171-72; United States v. Cartagena, 593 F.3d 104, 112 (1st Cir. 2010); United States v. Nelson-Rodriguez, 319 F.3d 12, 36-37 (1st Cir. 2003)). Acknowledging that “an offer of proof is required, ” Mr. Chase again points to the evidence alleged in Mr. French’s motion by stating he will rely on “the evidence that is likely to be produced at the hearing on the motions for new trial.” Id. If the Court were to find “that exculpatory information was wrongfully omitted” based on that evidence, Mr. Chase contends it should scrutinize five affidavits used to provide probable cause for five search warrants. Id. at 6. In particular, as Mr. Chase sees it, the Court’s task would be to “rewrite the affidavits”-including any exculpatory information and striking any false information-and then decide whether the rewritten affidavits provide probable cause. Id. at 6-7. Mr. Chase contends that the Court must void the warrant and exclude the fruits of the search if probable cause no longer exists. Id. at 7 (citing United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015)).

2. The Government’s Opposition to Mr. Chase’s Amended Motion

The Government’s opposition characterizes Mr. Chase’s amended motion as “rel[ying] upon the notion that the ‘Prentiss Grow’ existed, that the Government knew that it existed, and that the Government failed to disclose this knowledge.” Gov’t’s Obj. to Chase at 1. The Government notes that it has already responded to these allegations and that it “offers nothing further.” Id.

3. Mr. French’s Response to Mr. Chase’s Amended Motion

Mr. French perceives in Mr. Chase’s amended motion an “unusual coupling of the prosecutor and Defendant Chase.” French’s Resp. to Chase at 1. Thomas Hallett, Mr. French’s counsel, pieces together an allegation-largely on second- and third-hand authority-that United States Attorney Delahanty pressured Attorney Sharon to file Mr. Chase’s amended motion in what amounts to a “collateral attack[]” on Mr. French’s third motion for new trial. Id. at 2-3. Mr. French clarifies that he does not move for a new trial on a claim of suborning perjury, as Mr. Chase suggests, but on one of knowing use of perjured testimony. Id. at 1 n.1, 4. He then rehashes his evidence for that claim. Id. at 4-6.

IV. ANALYSIS OF FACTUAL ALLEGATIONS

A. The Anonymous Note

The anonymous note found in March 2015 by Mr. French’s son is an oddity.[13]It is signed “a friend and neighbor” and the author presents a certain familiarity with Mr. French and the marijuana grow operations. Anonymous Note at 1. The source tells Mr. French that he “was always fair to me, ” that he “worked with winston and them other guys over many seasons, ” and that “if you remember seein me on 4 wheeler at east grand maybe.” Id. If Mr. French knows the identity of the anonymous source, he has not said so.

The anonymous author claims that he worked for a group of marijuana growers that included “winston, ” presumably Winston McTague. Id. The note says that “when he worked for you the first time, ” a person named Scott (presumably Scott MacPherson[14]) was “the one that got us growing on you in la and otis.” Id. The Court assumes that “la” refers to LaGrange and that “otis” refers to Otis, a town in Hancock County, Maine.[15] During his trial testimony, Mr. French stated that he owned some property in Otis, Maine. Partial Tr. of Proceedings 13:14-18 (ECF No. 362) (French Test. I). After burning the marijuana grow in Otis to escape Mr. French’s detection, the author says “they was growin on you in la at the same time.” Anonymous Note at 1. The author asserts that “after the deal in otis scott took off” and that Scott “was afraid youd find out what happend down ther and blame him.” Id.

The author mentions another marijuana grow operation, this one in Danforth, Maine, which is located on the eastern side of Washington County. Id. The author says that the marijuana operation took place on paper company land “before you got that land to” and he assures Mr. French that “no one new that you got that land.” Id. The author claims that “some of your guys ripped them off when you was workin there a little bit then they got busted up there” and “they didnt grow up there after but still on you in la.” Id. The reference to the Danforth marijuana grow is generally consistent with Winston McTague’s trial testimony about an older marijuana grow operation in Danforth where Mr. McTague worked with co-defendant Kendall Chase. Partial Tr. of Proceedings 6:12-21 (ECF No. 414) (McTague Trial Test. I).

As the author tells it, the “benson brothers ripped them off big time in la” and he says that he knows that Mr. French “stepped up and covered from the bensons.” Anonymous Note at 1. But the author says that Mr. French “shudnt have save ther ass.” Id. He said “they no fuckin good they steal off your forever.” Id.

The author explains that “when they got that dirt from the t-shirt guys they made 2 patched one in westly and the other in la.” Id. This comment is hard to decipher. By the “t-shirt guys, ” the author may be referring to Robert Berg, a friend of Mr. French, who operated a t-shirt printing business and who pleaded guilty and has been sentenced to acting as an accessory after the fact to the French marijuana conspiracy. See United States v. Berg, No. 1:12-cr-00160-JAW, J. (ECF No. 573). There was trial evidence that some of the PRO-MIX was delivered to the conspiracy at Mr. Berg’s business. See McTague Trial Test. I 21:4-13. At trial, Mr. McTague referred to PRO-MIX as “dirt” and in the context of this note, it appears the anonymous author may be doing the same. Id. 27:4-28:14. The reference to “dirt from the t-shirt guys” may mean PRO-MIX picked up at Berg Sportswear, which figured prominently in the case. The reference to “westly” is probably to Wesley, Maine, a town in Washington County, and the Court infers that the author is referring to the Township 37 grow, not yet another marijuana grow in Wesley.

As best the Court can interpret it, the author is saying that the people who were growing the marijuana in LaGrange decided to move the growing operation from its then location to somewhere else in LaGrange and to Wesley. Regarding the Wesley grow, the anonymous author says that the “one down on the airline[16] was in a spruce seamp that they said was you land.” Anonymous Note at 1.

Turning to the LaGrange grow, the author says “the one in la they moved back on the state college land. at the end of the rite hand branch of the gated road closest to howland across painted line in a swamp and small brook.” Id. The Court interprets the reference to “howland” as being to Howland, Maine, a town that abuts LaGrange to the east, northeast. See Gordon Survey. Thus, according to the author, the people who were growing the marijuana disbanded the operation and moved it toward Howland on state college land across a painted line in a swamp and small ...


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