United States v. French

          ORDER ON JUROR RIGHT TO COUNSEL

          JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE.

         Following the Court of Appeals for the First Circuit's remand to this Court for an evidentiary hearing concerning Juror 86's responses to a jury questionnaire and her motivation behind those responses, the Court, over the objection of the Defendants, is going to appoint counsel to represent Juror 86. The Court concludes that based on the record now before it, including the appellate court's opinion, there is some potential that Juror 86 deliberately lied during the voir dire process and for that reason alone, she should be provided with counsel. In addition, the Court favors the appointment of counsel for practical reasons.

         I. BACKGROUND

         On October 10, 2018, the Court of Appeals for the First Circuit issued its mandate, remanding the Malcolm French and Rodney Russell cases to this Court “for further proceedings” on their motion for new trial. United States v. French, 904 F.3d 111 (1st Cir. 2018). On November 5, 2018, the Court denied the Defendants' motion for recusal. United States v. French, No. 1:12-cr-00160-JAW, 2018 U.S. Dist. LEXIS 188659 (D. Me. Nov. 5, 2018). On November 20, 2018, the Court held a conference of counsel to determine how best to respond to the First Circuit's remand. Min. Entry (ECF No. 802).

         II. LEGAL ISSUES

         A. Remanded for an Evidentiary Hearing

         The First Circuit in general remanded the case “to investigate the claim, ” indicating that “[t]he type of investigation the district court chooses to conduct is within the district court's discretion; it may hold a formal evidentiary hearing, but depending on the circumstances, such a hearing may not be required.” French, 904 F.3d at 117. Significantly, the French Court also wrote:

Because we are vacating and remanding for an evidentiary hearing concerning the possible bias of Juror 86, we could defer review of the drug quantity issue . . . .

Id. at 122 (emphasis supplied). This Court views the First Circuit's language as requiring on remand that the Court hold an evidentiary hearing. Under the law, an evidentiary hearing is a hearing “to try issues of fact.” Townsend v. Sain, 372 U.S. 293, 309 (1963). The term ‘evidentiary hearing' defines itself. A hearing in a court context, is a “judicial session, usu[ally] open to the public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying.” Bryan A. Garner, Black's Law Dictionary at 836 (10th ed. 2014). The First Circuit's use of adjective, “evidentiary, ” emphasizes that the hearing on remand must include the taking of evidence, and under basic concepts of due process, an evidentiary hearing includes placing witnesses under oath and allowing cross-examination. Id. (“evidentiary hearing” means “[a] hearing at which evidence is presented, as opposed to a hearing at which only legal argument is presented”).

         In United States v. Sampson, 724 F.3d 150 (1st Cir. 2013), the district court convened what the First Circuit described as an “evidentiary hearing” to resolve a question of juror misconduct. Id. at 156. The Sampson Court refers to the juror's presentation at the evidentiary hearing as testimony. Id. at 163 (“Juror C testified”). Furthermore, the district court allowed defense counsel to cross-examine the juror. Id. (“When defense counsel attempted to probe her lies about P, she resisted that line of inquiry”).

         Although, as the First Circuit noted, in many cases of juror misconduct it is appropriate for the district court to convene something less than an evidentiary hearing to investigate claims of juror misconduct, French, 904 F.3d at 117, the Court concludes, consistent with its interpretation of the First Circuit directive in this case, that it should convene an evidentiary hearing to resolve the issue of juror misconduct on remand.

         B. The Need for the Testimony of Juror 86

         The next question is whether the evidentiary hearing that the First Circuit ordered contemplates the sworn testimony of Juror 86. On this issue, the First Circuit observed that when a party claims that a juror failed to respond accurately to a question asked of prospective jurors prior to selection as a juror, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” French, 904 F.3d at 116 (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (emphasis in McDonough)). The French Court observed that “[t]he outcome of this inquiry depends on whether a reasonable judge, armed with the information that the dishonest juror failed to disclose and the reason behind the juror's dishonesty, would [have struck the juror for cause].” Id. (quoting Sampson, 724 F.2d at 165-66 (emphasis in French)). The First Circuit wrote that “the court may consider factors including but not limited to ‘the juror's interpersonal relationships; the juror's ability to separate her emotions from her duties; the similarity between the juror's experiences and important facts presented at trial; the scope and severity of the juror's dishonesty; and the juror's motive for lying.'” Id. (quoting Sampson, 724 F.3d at 166). The First Circuit emphasized that “the ultimate inquiry under Sampson requires that the court consider ‘the reason behind the juror's dishonesty.'” Id. at 118 (quoting Sampson, 165-55).

         Although the Court remains open to the suggestions of the parties as to how to resolve the issue of Juror 86's motivation without calling her as a witness, it anticipates that her testimony will be the central focus of the evidentiary hearing on remand. Id. at 118 (“The only way to tell if the passage of time would have erased Juror 86's memory ...