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United States v. French

United States District Court, D. Maine

November 5, 2018




         Following the Court of Appeals for the First Circuit's September 17, 2018 decision vacating my order denying a motion for new trial and remanding the case to me for further proceedings, the Defendants moved for me to recuse myself from this case. I deny the motion for recusal because I do not find that my impartiality may be reasonably questioned.

         I. BACKGROUND

         On September 14, 2012, in a multi-count indictment, a federal grand jury charged Malcolm French and Rodney Russell with several violations of federal drug laws involving marijuana and with harboring illegal aliens. Indictment (ECF No. 2). After a multi-week 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 and of several offenses involving the harboring of illegal aliens. Jury Verdict Form (ECF No. 311); J. (ECF No. 659); J. (ECF No. 661).

         On April 28, 2016, Malcolm French filed a motion for a new trial. Def. Malcolm French's Mot. for New Trial Pursuant to F.R. Crim. P. 33 (ECF No. 674). On May 8, 2016, Rodney Russell joined the motion. Def. Rodney Russell's Mot. to Join Def. Malcom French's Mot. for New Trial and Mot. to Extend Time to File Supp. Mem. (ECF No. 682). The basis of this motion for new trial was that Juror 86 had engaged in misconduct by failing to honestly respond to a material voir dire question, namely Question 3 of the jury questionnaire, and that a truthful answer would have provided a valid basis for a challenge for cause. Sealed Suppl. Mem. in Supp. of Def. Malcolm French's Mot. for New Trial Pursuant to F.R. Crim. P. 33 at 6-7 (ECF No. 685). On November 16, 2016, I denied the motion for new trial. Order Denying Mot. for New Trial (ECF No. 734).

         Mr. French and Mr. Russell appealed the jury verdict and sentencings to the Court of Appeals for the First Circuit. Notice of Appeal (ECF No. 708); Notice of Appeal (ECF No. 738); Notice of Appeal (ECF No. 739). On September 17, 2018, the Court of Appeals for the First Circuit vacated my order for a new trial based on the response of Juror 86 to question 3 on the jury questionnaire and remanded for further proceedings on that motion. United States v. French, Nos. 16-2386, 16-2392, 2018 WL 4403950, 2018 U.S. App. LEXIS 26268, at *33-34 (Sept. 17, 2018) (French). The First Circuit rejected the Defendants' remaining challenges to their convictions and sentences. Id.


         On October 4, 2018, Malcolm French moved for me to recuse myself from the case. Def. Malcolm French's Mot. to Recuse Judge Woodcock (ECF No. 787) (French Mot.). On October 8, 2018, Mr. Russell joined in Mr. French's motion “for the same reasons and on the same grounds as set forth in Defendant French's motion” but did not separately brief his position. Def. Rodney Russell's Joinder in Def. Malcolm French's Mot. to Recuse Judge Woodcock (ECF No. 789). On October 15, 2018, the Government responded, opposing the motion. Gov't's Objection to Mot. to Recuse (ECF No. 792) (Gov't's Opp'n). On October 18, 2018, Mr. French filed a reply, which Mr. Russell joined. Def.'s Reply to the Gov't's Objection to Def.'s Mot. to Recuse Judge Woodcock (ECF No. 793) (French Reply); Def. Rodney Russell's Joinder in Def. Malcolm French's Reply Entitled “Def.'s Reply to Gov't's Objection to Def.'s Mot. to Recuse Judge Woodcock” (ECF No. 794).


         A. Malcolm French's Motion

         Mr. French “requests that Judge Woodcock recuse himself from acting further in this matter and specifically from conducting a hearing on the bias or misconduct of Juror 86.” French Mot. at 1. Mr. French explains:

As grounds, Mr. French states that Judge Woodcock's impartiality might reasonably be questioned as a result of Judge Woodcock's past refusal to follow the law in questioning the jurors concerning allegations of bias and misconduct, and in particular Judge Woodcock's repeated refusal to do so in the instant case, as well as Judge Woodcock's decision to put the interests of a juror ahead of Mr. French's constitutional rights to a fair and impartial jury when faced with the prospect of questioning a juror in the exact type of evidentiary hearing that the First Circuit Court of Appeals suggested should have taken place.

Id. (quoting French, 2018 U.S. App. LEXIS 26268, at *13 (“The only way to tell if the passage of time would have erased Juror 86's memory of events would be to ask her to recall these events, something the district court declined to do”)).

         Mr. French recites three instances in which he claims I exhibited bias and a refusal to follow First Circuit precedent regarding challenges to specific jurors: (1) Juror 79; (2) Juror 114; and (3) Juror 86. Id. at 2-4. As Mr. French describes it, when defense counsel questioned whether Juror 79 knew one of the witnesses but failed to disclose it during voir dire, even though his motion for new trial alleged that Juror 79's response was intentional, I conducted only “partial hearing on the motion, taking testimony from the witness in the trial, Steve Koenig, who confirmed that he ‘knew' the juror in question, and spoke to Juror 79 during a 5-10 minute telephone call in 2013.” Id. at 2. Furthermore, according to Mr. French, I declined defense counsel's request that I question Juror 79 because I was concerned about Juror 79's potential criminal exposure and his Fifth Amendment rights. Id. at 2-3. Similarly, Mr. French accuses me of exhibiting bias in my handling of defense counsel complaints about Juror 114. Id. at 3. Finally, Mr. French interprets the First Circuit decision as confirming that I improperly favored the juror over his own constitutional right to a fair and impartial jury. Id. at 3-4.

         Taken together, Mr. French claims that “the comments and opinions surrounding the Court's three rulings on juror misconduct investigations create an objective risk of bias, or whether this Court's impartiality might reasonably be questioned.” Id. at 6. Mr. French concedes that “[t]rial rulings on their own can almost never form the basis for a bias or partiality motion.” Id. Nevertheless, he notes that “where a trial ruling is based upon extrajudicial knowledge and motive, that extrajudicial knowledge and motive can form the basis of a bias or partiality motion, ” id., and he contends that “a factual basis derived from ‘surrounding comments or accompanying opinions' to the trial ruling, may be the basis for a bias or partiality motion.” Id. (quoting Liteky v. United States, 510 U.S. 540, 545, 555 (1966)). Mr. French argues that my “comments and opinions” surrounding my three rulings regarding juror misconduct investigations “create an objective risk of bias” or suggest that my “impartiality might reasonably have been questioned.” Id.

         Mr. French maintains that “[t]he common thread of the Court's comments and opinions surrounding the three Court Orders previously questioned, is the appearance of an extrajudicial bias of the Court in favor of the rights of a juror when weighed against the constitutional requirement of a fair and impartial jury under the Sixth Amendment.” Id. Mr. French goes further and claims that my “comments and opinions” surrounding my rulings “derive from extrajudicial facts and opinions formulated by the Court as to the sanctity of the individual juror, and the jury system” and are “not formulated from the facts or events set forth in United States v. French, but are based on facts and opinions held by the Court outside the confines of the French proceedings, and are therefore extrajudicial.” Id. Quoting one of my comments concerning Juror 79, Mr. French asserts that it is my view the “juror must be protected, at Mr. French's expense.” Id. at 7. Mr. French charges that “we have a judge who is perhaps uniquely concerned about protecting jurors during investigations for possible wrong-doing, ” which he acknowledges is “[i]n and of itself . . . not objectionable and perhaps admirable.” Id. But he says that in doing so, I have “created a situation where the Court's impartiality ‘might reasonably be questioned.'” Id.

         Mr. French next raises the possibility that I will be unable to apply the directive of the First Circuit on remand in this case. Id. at 7-8. He worries that I have developed a “strongly held belief” and I should not “question a potentially mendacious juror” and this creates, in his view, “an appearance that the Court might be partial to a juror's interests during a continuing investigation of the juror's alleged wrongdoing as required by the First Circuit.” Id. at 7-8 (emphasis in original). He claims that the Court's refusal to question a juror in the other two instances, “where it should have, creates a situation where the Court's impartiality might reasonably be questioned.” Id. at 8. He concludes that “[a]ny appearance of partiality is unacceptable.” Id.

         B. The Government's Response

         On October 15, 2018, the Government filed its opposition to the motion to recuse. Gov't's Opp'n at 1-7. The Government says that “[n]otwithstanding the defendants' argument, there is no basis to conclude that the Court's impartiality might reasonably be questioned or that recusal is in order.” Id. at 1-2.

         The Government reviews the legal standards under which a motion to recuse should be evaluated. Id. at 2-3. The Government questions whether the motion recuse is timely, noting that my ruling on Juror 79 was in April 2015 and my trial rulings on the other jurors were in January 2014 and any alleged bias would have been evident then. Id. at 4-5. The Government discounts Mr. French's charge that by considering a juror's Fifth Amendment rights, I exhibited bias against Mr. French. Id. at 6. The Government also observes that Mr. French failed to mention that the First Circuit upheld my ruling on Juror 79. Id. The Government finds Mr. French's contention regarding Juror 114 to be “confounding” because I granted the defense motion to remove Juror 114, a decision the Government characterizes as “reasonable and judicious.” Id. at 7. The Government concludes that Mr. French failed to meet the legal standards for recusal. Id.

         C. Malcolm French's Reply

         After reciting additional caselaw on recusal issues, Mr. French says that the Government's opposition “completely misses the mark.” French's Reply at 2. Mr. French repeats his concern that I demonstrated the appearance of bias when I expressed concern that “a potentially mendacious juror” should be protected “from the fallout from that conduct over the rights of the defendant to a fair and impartial trial.” Id. He contends that this “cannot be disputed.” Id. Mr. French observes that the resolution of the issue on remand “is in large part dependent on the Juror's credibility” and he believes that “[b]ias in favor of jurors is going to impact the decision, or at least have that appearance.” Id.

         Mr. French says that the “challenge for this Court is to view recusal through an objective rather than subjective lens.” Id. at 3. He quotes the United States Supreme Court in writing that “actual bias is difficult to discern.” Id. (quoting Williams v. Pennsylvania, 136 S.Ct. 1899, 1905 (2016) (quoting In re Murchinson, 349 U.S. 133, 136 (1955)).

         Mr. French writes that the Government is “only partially correct” when it assumes that it is my “past refusal to comply with known law” that is evidence of my bias. Id. He stresses that he “primarily contends that the Court's extrajudicially formulated opinions of the sanctity of the juror as contained in the Court's own statements” that “firmly establish that the Court's ‘impartiality might reasonably be questioned.'” Id. (emphasis in original). Mr. French criticizes me for worrying about the juror's assertion of her Fifth Amendment right to remain silent and argues that “[i]t is exactly this thought process that gives rise to the appearance of bias, conscious or unconscious.” Id. at 4. Mr. French returns to my comments about Juror 79 and not allowing him to “walk into a snare.” Id. Mr. French concludes that the “investigation could easily be conducted by another federal judge, without any appearance of partiality, conscious or unconscious, ” and in his view, “[t]he system would be well served.” Id. at 5.


         A. Statutory Provisions

         There are two statutory provisions addressing recusal:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

28 U.S.C. § 144. Subsection (a) of § 455 of title 28 provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”[1] Mr. French has not filed an affidavit under § 144 and he has argued that I must recuse because my “impartiality might reasonably be questioned.” Accordingly, although he does not specify the recusal statute under which he is proceeding, I assume it is § 455(a).

         B. Caselaw on Recusal

         The First Circuit observed that the “reach of the subsection is broad. It forbids partiality whether grounded in an ‘interest or relationship' or a ‘bias or prejudice'; and it forbids not only the reality of partiality but its objective appearance as well.” United States v. Snyder, 235 F.3d 42, 45 (1st Cir. 2000) (citing Liteky v. United States, 510 U.S. 540, 548 (1994)). At the same time, the First Circuit has noted that “judges are not to recuse themselves lightly under § 455(a).” Id. (citation omitted). The First Circuit wrote that “under § 455(a) a judge has a duty to recuse himself if his impartiality can reasonably be questioned; but otherwise, he has a duty to sit.” Id. (footnote omitted).

         V. DISCUSSION

         A. The Allegations of Bias

         In his motion, Mr. French rests his demand for recusal on three matters involving jurors that took place during his January 2014 trial: (1) Juror 79; (2) Juror 114; and (3) Juror 86.

         1. Juror 79

         There are a couple of unusual aspects to Mr. French's claim about Juror 79. First, according to the First Circuit, Mr. French did not appeal my handling of the issue surrounding Juror 79. French, 2018 U.S. LEXIS 26268, at *20-21 (“Defendants also filed a separate motion for a new trial based on the voir dire responses of another juror, Juror 79. Only Russell, and not French, appeals the denial of this motion”) (emphasis supplied). If my response to the Juror 79 issue displayed, as Mr. French now claims, judicial conduct meriting recusal, Mr. French did not deem my handling of the issue worthy of appeal.

         Moreover, the First Circuit rejected Mr. Russell's appellate challenge to my response to the issue surrounding Juror 79. The issue involved whether Juror 79 gave a dishonest answer to a question from the Magistrate Judge during voir dire about whether he knew Steve Koenig, one of the trial witnesses. Id. at 21-22. Instead of questioning Juror 79, I elected to bring in Mr. Koenig and ask him whether he knew Juror 79. Id. at *22. Mr. Koenig responded that he had spoken to Juror 79 on the phone for five to ten minutes sometime during the year before trial but that the two had never met before trial. Id. There was no probative evidence of any other direct contact between the two. Id. Based on this evidence, I concluded no further investigation was warranted. Id.

         In the words of the French Court, “the district court brought in Koenig for questioning, but saw no reason to go further and bring in Juror 79 after hearing Koenig's testimony.” Id. 2018 U.S. App. LEXIS 26268, at *23-24. The First Circuit wrote that “[o]n such a record, having heard testimony from Koenig, the district court did not abuse its discretion in deciding to deny the motion without additional investigation.” Id. at *25. As the First Circuit affirmed my decision not to bring in Juror 79 for questioning and instead to allow the questioning of another witness, it is difficult to understand how my handling of the controversy surrounding Juror 79 could be evidence of bias or prejudice against Mr. French.

         2. Juror 114

         a. A Ruling ...

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