United States District Court, D. Maine
ORDER IN ANTICIPATION OF EVIDENTIARY HEARING
A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE.
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.
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.
Issues to be Resolved Through the Testimony of Juror
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).
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.” 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
Burden of Proof
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
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).
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.