United States District Court, D. Maine
ORDER DENYING MOTION TO RECUSE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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
THE MOTION TO RECUSE
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.
THE POSITIONS OF THE PARTIES
Malcolm French's Motion
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”)).
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.
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.
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.'”
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
The Government's Response
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.
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
Malcolm French's Reply
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.
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)).
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.
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.” 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).
Caselaw on Recusal
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).
The Allegations of Bias
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.
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.
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.
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.
A Ruling ...