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United States v. French

United States District Court, D. Maine

January 22, 2019




         Following the Court of Appeals for the First Circuit's remand to this Court for an evidentiary hearing regarding Juror 86's responses to a jury questionnaire and her motivation behind those responses, the Court clarifies certain issues for purposes of the evidentiary hearing now scheduled for February 1, 2019.

         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, 125 (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). After discussion with counsel, the Court concluded that Juror 86 should be appointed counsel, Order on Juror Right to Counsel (ECF No. 808) (Order on Right to Counsel) and appointed Federal Defender David Beneman as counsel for Juror 86. On January 14, 2018, the Court held another conference of counsel to discuss the evidentiary hearing. Min. Entry (ECF No. 815). During the conference, after consulting with counsel, the Court scheduled the evidentiary hearing for February 1, 2018. Min. Entry (ECF No. 815). The Court also resolved several issues, which are reflected in this Order.


         A. Issues to be Resolved Through the Testimony of Juror 86

         In its opinion dated September 17, 2018, the First Circuit discussed the issues that the Court must resolve on remand. United States v. French, 904 F.3d 111, 116-17 (1st Cir. 2018). “To obtain a new trial based on a juror's failure to respond accurately to questions asked of prospective jurors prior to their selection to sit as jurors, ‘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.'” Id. at 116 (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984)) (emphasis in original). These are, therefore, the two overriding issues to be resolved at the evidentiary hearing: (1) did Juror 86 fail to honestly answer a material question; and (2) would a correct response have provided a basis for a challenge for cause. On the second question, the First Circuit explained further 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 v. United States, 724 F.3d 150, 165-66 (1st Cir. 2013)) (emphasis in French). The First Circuit wrote that a court may consider such factors as “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).

         There is another possibility, namely that Juror 86's responses were “honest, but mistaken.” Sampson, 724 F.3d at 164 n.8. If so, the First Circuit has written that “in the absence of dishonesty, post-trial relief, if available at all, will require a more flagrant showing of juror bias.”[1] Id. In Sampson, the First Circuit observed that the United States Supreme Court concluded in McDonough that a “mistaken, though honest, ” response did not require a new trial. Id. at 164 (quoting McDonough, 464 U.S. at 555).

         B. Burden of Proof

         The Defendants Malcolm French and Rodney Russell bear the burden of proof on these issues. Id. at 117 (discussing the showing “that a defendant must make to obtain a new trial”).

         C. Confidentiality Issues

         The Court discussed the need for confidentiality about the juror's name and her son's name. At one point the Government argued that the evidentiary hearing itself should be sealed, but the Court rejected this contention based on its understanding of the public right of access to the courts, particularly to criminal proceedings. United States v. Kravetz. 706 F.3d 47 (1st Cir. 2013).

         The Court suggested that counsel agree to refer to the juror as “Juror 86” and present a stipulation to the Court, which the Court would seal, confirming that the person who appears to testify on February 1, 2019 is Juror 86. The Court also suggested that counsel treat Juror 86's son's name as confidential, especially since he was not responsible for whatever happened during voir dire. Counsel agreed to do so.

         D. ...

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