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United States v. French

United States District Court, D. Maine

June 7, 2019

UNITED STATES OF AMERICA
v.
MALCOLM A. FRENCH, et al.

          ORDER ON MOTION FOR NEW TRIAL ON REMAND

          JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

         Concluding that a juror knowingly gave an inaccurate answer to a juror questionnaire, the First Circuit vacated this Court's denial of the defendants' motion for a new trial and remanded the motion to this Court for an evidentiary hearing. After conducting an evidentiary hearing at which the juror and others testified, the Court affirms that the juror's responses to the jury questionnaire in the fall of 2013 were inaccurate and finds that the juror was not honest in her responses. The Court also concludes that some, but not all, of the requested information about the juror's family's experiences with “court matters” in the jury questionnaire would have been material to the jury selection process. At the same time, the Court finds that the juror was credible when she testified that she could be and was fair and impartial as a juror in the defendants' case. Absent any evidence of the juror's motivation underlying her dishonesty, the Court concludes that the defendants failed to sustain their burden of proof to demonstrate they are entitled to a new trial.

         I. BACKGROUND

         A. Remand

         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 the Defendants' motion for new trial. United States v. French, 904 F.3d 111, 125 (1st Cir. 2018); Mandate as to Malcolm French (ECF No. 790); Mandate as to Rodney Russell (ECF No. 791).

         B. Recusal

         On October 4, 2018 and October 8, 2018, immediately after the issuance of the First Circuit opinion and before the receipt of the mandate on October 10, 2018, the Defendants moved to recuse this Judge. Def. Malcolm French's Mot. to Recuse Judge Woodcock (ECF No. 787); Def. Rodney Russell's Joinder in Def. Malcolm French's Mot. to Recuse Judge Woodcock (ECF No. 789). After briefing, on November 5, 2018, the Court denied the motions to recuse. Order Denying Mot. to Recuse (ECF No. 796).

         C. The November 20, 2018 Conference of Counsel

         After the November 5, 2018 recusal order, on November 7, 2018, the Court scheduled a conference of counsel for November 20, 2018. Notice of Hr'g (ECF No. 797). In anticipation of the conference of counsel, the Government wrote the Court on November 16, 2018. Letter from AUSAs Joel B. Casey and F. Todd Lowell to Hon. John A. Woodcock, Jr. (Nov. 16, 2018) (ECF No. 843). The Government suggested that the Court engage in a “staged process” whereby the Court contacts Juror 86, arranges for counsel to represent her, and brings her to court for further questioning:

Step 1 - the Clerk of Court corresponds with Juror 86 to serve her a summons and to notify her that the Court would appoint counsel to represent her;
Step 2 - the Court would appoint experienced CJA counsel to represent Juror 86;
Step 3 - Counsel for the Government and the Defendants could provide written questions for the Court to ask Juror 86;
Step 4 - the Court would call Juror 86 to court for an on the record discussion, which counsel for the Government and the Defendants could observe via video-teleconference. The Court would consult with counsel about any additional questions;
Step 5 - the Court Reporter would prepare a transcript of the proceedings and the parties would file memoranda.

Id. at 2.

         Several issues arose at the conference of counsel. The Court first discussed with counsel what kind of investigation the Court should undertake and whether an evidentiary hearing was necessary. The Defendants took the position that an evidentiary hearing was necessary and that the Court should hold a hearing at which Juror 86 was called to testify. The Government contended that, although an evidentiary hearing was required, the First Circuit had not directed the Court to hold a particular type of evidentiary hearing and that something less than having Juror 86 testify in open court might satisfy the First Circuit directive. The Court agreed with the Defendants, citing the First Circuit opinion that the Court read as requiring an evidentiary hearing. See French, 904 F.3d at 122 (“Because we are vacating and remanding for an evidentiary hearing. . ..”) (emphasis supplied). The Court stated that front and center in the evidentiary hearing would be the question of Juror 86's motivation and, assuming her answer was inaccurate, her motivation would go to whether the inaccurate answer would have provided the basis for a challenge for cause.

         The Court and counsel discussed several practical questions: (1) how to approach Juror 86; (2) whether it was likely that Juror 86 would invoke her Fifth Amendment rights; and (3) whether the Court should appoint counsel to represent Juror 86. In addition, the Court asked counsel about the procedure to be used at the evidentiary hearing: (1) whether the Court or counsel should do the questioning; (2) whether the Court should hold the evidentiary hearing in open court or in chambers; (3) whether-if counsel were appointed to represent Juror 86-her court-appointed attorney or other counsel should perform direct examination; (4) whether the Rules of Evidence would apply; and (5) whether the parties anticipated calling any witnesses other than Juror 86. The Court indicated, and counsel agreed, that any questions about actual jury deliberations and her impressions of the evidence during trial and jury deliberations were not proper subjects of the anticipated hearing.

         At the conference, the Court stated to counsel that it was inclined to appoint experienced defense counsel to represent Juror 86 for purposes of the anticipated hearing. The Defendants objected. The Court ordered counsel to file their positions. They did so. Letter from Att'ys Thomas F. Hallett and Jamesa J. Drake to Hon. John A. Woodcock, Jr. (Nov. 23, 2018) (ECF No. 805); Letter from Att'y William S. Maddox to Hon. John A. [W]oodcock, Jr. (Nov. 23, 2018) (ECF No. 806); Letter from AUSAs Joel B. Casey and F. Todd Lowell to Hon. John A. Woodcock, Jr. (Nov. 16, 2018) (ECF No. 807).

         On November 23, 2018, the Court issued an order resolving several issues. Order on Juror Right to Counsel (ECF No. 808). The Court reiterated its view that the First Circuit remanded this matter to the district court to hold an evidentiary hearing, that it would likely require the testimony of Juror 86, that over the Defendants' objection, it would appoint counsel to represent Juror 86, and that after counsel had been appointed to represent Juror 86 and the Court had received notice that the matter was ready to proceed, the Court would convene another conference of counsel. Id. at 1-14. On the same day, November 23, 2018, the Court appointed the Federal Defender (FD) for the District of Maine, David Beneman, to represent Juror 86. Order Appointing Counsel (ECF No. 809).

         D. The January 14, 2019 Conference of Counsel

         After FD Beneman notified the Clerk's Office that he was prepared to proceed, on January 3, 2019, the Court scheduled a conference of counsel for January 14, 2019. At the conference, FD Beneman stated that his client, Juror 86, did not take a position on an evidentiary hearing. The Court urged counsel to stipulate to such facts as whether Juror 86 is the mother of a person convicted of various offenses and the exact nature of the son's criminal record. The Court suggested that at the evidentiary hearing, Juror 86 be referred to as Juror 86 and not her actual name.

         FD Beneman suggested that the Court consider something less than a full public hearing, similar to what happens during voir dire, and that the Court seal the hearing from the public. After some discussion, the Court stated that it was not inclined to seal the hearing because this hearing was presumptively public under United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013).

         The Court concluded that it was not going to ask Juror 86 questions from the bench. The Court stated that it was inclined to allow FD Beneman to perform a direct examination of Juror 86 and then allow counsel for the Defendants and the Government to perform a cross-examination. FD Beneman agreed to perform a direct examination if asked to do so by the Court. Although the Government preferred that the Court ask questions, it agreed that, absent questions from the bench, a direct examination by FD Beneman would be appropriate. The Defendants objected, saying that since they had the burden of proof, they should be allowed to question Juror 86 first.

         The Court also addressed whether the Rules of Evidence would apply to the evidentiary hearing and, after some discussion, the parties agreed that they would not. Instead, the Court stated that it would evaluate objections based on more general standards of relevance, materiality, and prejudice. At the conference, the Court scheduled the evidentiary hearing for February 1, 2019. Notice of Hr'g (ECF No. 816).

         E. The January 22, 2019 Order

         On January 22, 2019, the Court issued an order, clarifying the issues being presented at the February 1, 2019 evidentiary hearing, the burden of proof, confidentiality issues, stipulations, Juror 86's son's criminal record, jury deliberations, and the sequencing of questioning.

         1. Issues to be Resolved

         On the issues to be resolved at the hearing, the Court wrote that there were two main issues: “(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.” Order in Anticipation of Evid. Hr'g (ECF No. 820). Regarding the second issue, the Court quoted the First Circuit as stating 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. at 2 (quoting French, 904 F.3d at 116 (quoting Sampson v. United States, 724 F.3d 150, 165-66 (1st Cir. 2013)) (emphasis in French). The Court listed the factors the First Circuit enumerated in French. Id. at 2-3 (quoting French, 904 F.3d at 116 (quoting Sampson, 724 F.3d at 166)). If the Court found that Juror 86 did not lie, but was honestly mistaken, the Court noted that the First Circuit requires a “more flagrant showing of juror bias.” Id. at 3 (quoting Sampson, 724 F.3d at 164 n.3).

         2. Burden of Proof

         The Court concluded that the burden of proof rested on Defendants Malcolm French and Rodney Russell. Id. (quoting French, 904 F.3d at 117).

         3. Confidentiality Issues

         Regarding confidentiality, the Court rejected the Government's position that the evidentiary hearing should be sealed. Id. at 3-4 (citing United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013)). The Court ruled, however, that neither Juror 86's name nor the name of her son would be publicly available, but that the parties should file a stipulation under seal that confirmed the person appearing before the Court on February 1, 2019 was in fact Juror 86. Id. at 4.

         4. Stipulations

         The Court urged counsel to enter into as many stipulations as possible to limit the presentation of evidence. Id.

         5. Son's Criminal Record

         Assuming counsel might wish to have the son's actual criminal record available for examination, the Court urged counsel to prepare an appropriately redacted document. Id.

         6. Jury Deliberation Process

         Referring to Federal Rule of Evidence 606(b) as a guide, the Court ruled that the juror must not be asked about jury deliberations, juror votes, or the juror mental processes concerning the verdict. Id. at 5.

         7. Sequence of Questioning

         The Court concluded that, although permissible, it would not conduct the initial examination of the juror. Id. The Court further ruled that, although permissible, it would not prohibit counsel from the defense and prosecution from asking questions. Id. When the Court suggested that it would ask FD Beneman to perform a direct examination of Juror 86, Malcolm French objected, and the Court allowed him to present any authority for his contention that the Defendants had a right to cross-examine Juror 86 without any direct examination. Following the January 14, 2019 conference of counsel, Defendant French wrote the Court to confirm that he could locate no such authority. Letter from Att'y Thomas Hallett and Att'y Jamesa J. Drake to Hon. John A. Woodcock, Jr. (Jan. 20, 2019) (ECF No. 817). The Court ruled that the sequence of questioning would be: (1) FD Beneman on direct examination; (2) cross-examination by defense counsel for Malcolm French; (3) cross-examination by defense counsel for Rodney Russell; (4) cross-examination by the federal prosecutor; and (5) redirect examination and re-cross-examination in the same order. Id. at 6-8.

         F. The January 28, 2019 Order

         On Monday, January 28, 2019, in anticipation of the Friday, February 1, 2019 evidentiary hearing, Rodney Russell moved the Court to have the audio recording of the jury voir dire of January 8, 2014 available for use during the evidentiary hearing. Def. Rodney Russell's Mot. to Have the Audio for the Voir Dire to be Available at Hr'g on Feb. 1, 2019 Consistent with Court Order dated Mar. 18, 2015 at Doc # 490 (ECF No. 824). On January 29, 2019, the Court dismissed without prejudice Mr. Russell's motion. Order on Def. Rodney Russell's Mot. to Have the Audio for the Voir Dire to be Available at Hr'g on Feb. 1, 2019 Consistent with Court Order dated Mar. 18, 2015 at Doc # 490 (ECF No. 827). The Court ruled that by statute, 28 U.S.C. § 753, and under the Guide to Judiciary Policy, the certified transcript of the jury voir is the official record, that the backup recording is the court reporter's personal property, and that Mr. Russell proffered no justification for his request. Id. at 1-4.

         G. The January 31, 2019 Order

         On January 30, 2019, Malcolm French moved the Court to order that Juror 86's original questionnaire be made available in the courtroom during the February I, 2019 evidentiary hearing and to inform the parties when the Court received her written questionnaire. Mot. (ECF No. 828). On January 31, 2019, the Court granted in part and dismissed in part the Defendant's motion. Order (ECF No. 830). With some conditions about the handling of the original document, the Court granted the motion to make the original questionnaire available. Id. at 1. The Court dismissed the Defendant's request for a specific date that the Court received the written questionnaire, but it confirmed that the Clerk's Office received it sometime between October 18 and October 31, 2013. Id. At the February 1, 2019 evidentiary hearing, the parties stipulated that the Clerk's Office received the questionnaire from Juror 86 between October 18 and October 31, 2013 and that it was a one-page form. Tr. of Proceedings, Evidentiary Hr'g 4:17-5:15 (ECF No. 835) (Tr.).

         II. THE FEBRUARY 1, 2019 EVIDENTIARY HEARING

         A. Stipulations

         Consistent with the Court's January 22, 2019 order, the parties entered into several stipulations concerning the criminal record of Juror 86's older son at the time Juror 86 completed the jury questionnaire and at the time of jury selection:

1. A conviction in state court in Kennebec County, Maine for Operating After Suspension (29-A M.R.S. § 2412-A), a Class E misdemeanor and a conviction for Unlawful Possession of Scheduled Drugs, namely marijuana (17-A M.R.S. § 1107), a Class E misdemeanor. Both of these crimes were charged in one complaint and alleged a date of offense of December 13, 2002. The defendant pleaded guilty to these offenses on December 16, 2002, and was sentenced on the same day to 7 days in jail and a $500 fine on the Operating After Suspension change and 180 days, all suspended, with one year or probation on the Unlawful Possession of Scheduled Drugs charge. The defendant was originally charged with a third count for Unlawful Furnishing of Scheduled Drugs, namely marijuana (17-A M.R.S. § 1106), a Class D misdemeanor. That charge alleged the same date of offense as the other two charges and was dismissed on December 16, 2002. The docket record shows that the defendant was pro se.
A. On May 21, 2003, the court partially revoked the defendant's probation. The court imposed a sentence of 21 days.
B. On October 21, 2003, a probation officer filed a Motion for Probation Revocation. The defendant was incarcerated for a period of time. The probation officer withdrew the Motion for Probation Revocation.
2. A conviction in state court in Kennebec County, Maine for Unlawful Possession of Scheduled Drugs, namely cocaine (17-A M.R.S. § 1107-A(1)(C)), a Class D misdemeanor. The defendant was originally charged with Unlawful Furnishing of Scheduled Drugs, namely cocaine (17-A M.R.S. § 1106), a Class C felony. The Class C charge was amended to the Class D misdemeanor offense on December 27, 2005, and the defendant pleaded guilty to the misdemeanor offense and was sentenced on the misdemeanor charge on that date. The court sentenced the defendant to 7 days in jail and a $2, 000 fine. The docket record shows that the defendant was represented by Leonard Sharon.
3. A conviction in state court in Penobscot County, Maine for Unlawful Possession of Scheduled Drugs, namely marijuana (17-A M.R.S. § 1107-A(F)(1)), a Class E misdemeanor. The defendant pleaded guilty to the charge on February 2, 2011, and was sentenced on the same day to a $750 fine. The docket record shows that the defendant was represented by Leonard Sharon.

Stip. Number One (ECF No. 829). The parties filed a second stipulation under seal confirming Juror 86's name as well as her older son's name. The parties stipulated that her older son's year of birth was 1982. Stip. Number Two (ECF No. 834) (under seal).

         B. Exhibits

         During the evidentiary hearing, the Court admitted the following exhibits:

(1) Juror 86 Exhibit 1, Jury Information Form;
(2) Juror 86 Exhibit 2, Juror Questionnaire;
(3) French Exhibit 1, Kennebec County Jail Record of Visits;
(4) French Exhibit 2, Criminal Summons;
(5) French Exhibit 7, Conditions of Probation;
(6) French Exhibit 13, Copies of checks; and
(7) French Exhibit 18, Petition request.

         Several exhibits were admitted and sealed, but redacted versions of the exhibits were admitted on the public record. See Court Ex. List (ECF No. 832).

         The Juror 86 exhibits were copies of the questionnaires Juror 86 completed in the fall of 2013 that generated the need for the evidentiary hearing. French Exhibit One reflects that on October 22, 2003, Juror 86 visited her older son at the Kennebec County Jail. French Exhibit Two is a uniform summons and complaint for Juror 86's son for the charge of Unlawful Trafficking in Scheduled Drugs on August 28, 2010 with an appearance date of October 6, 2010. French Exhibit Three is a motion for probation revocation dated October 17, 2003 for failure to refrain from the use of drugs, cocaine, and failure to report as directed in August and September 2003. French Exhibit Seven is a list of conditions of probation for Juror 86's son following his 2002 convictions for operating after suspension and unlawful possession. French Exhibit Thirteen consists of three personal checks Juror 86 made out to Leonard Sharon, Esq. on August 31, 2010, September 10, 2010 and September 16, 2010; two in the amount of $1, 000 and one in the amount of $2, 000. Finally, French Exhibit Eighteen is a petition request authorization in a juvenile matter for theft and forgery dated January 23, 2001, referring the matter to a juvenile caseworker.

         C. February 1, 2019 Stipulation

         At the outset of the evidentiary hearing, counsel stipulated that when jurors are contacted by the Clerk's Office and complete the questionnaires, they do not know whether the case is going to be a civil or criminal matter. Tr. 6:17-7:15.

         D. Juror 86's Testimony

         1. Direct Examination: Federal Defender Beneman

         On direct examination by FD Beneman, Juror 86 confirmed her name and that she is the mother of the person listed in Stipulation Two. Tr. 12:8-11. She testified that she graduated from high school, reads and writes English, and worked in an office environment. Id. 12:15-20. She said she is used to reading state government forms and papers. Id. 12:21-23.

         Shown Exhibits One and Two, Juror 86 acknowledged that the handwriting on both forms is hers. Id. 12:24-13:17. She said she had no recollection of having seen these forms. Id. 13:24-14:1. Juror 86 Exhibit One is a juror information form, containing such information as the juror's address, marital status, age, employment, spouse's employment, whether there are any pending criminal charges against the juror, and whether the juror had been previously convicted of a felony. Juror 86 Ex. 1. Juror 86 confirmed that all the information on Juror 86 Exhibit One was correct as of the fall of 2013. Tr. 14:15-22.

         Juror Exhibit Two is the questionnaire that was the focus of the First Circuit opinion and is the focus of the remand. Looking at Juror Exhibit Two, Juror 86 said she could not recall whether it came with Juror Exhibit One or separately. Id. 14:23-15:1. Asked about the other information on Juror Exhibit Two, Juror 86 testified that it was all correct. Id. 15:2-22. Juror 86 agreed that she had answered question 3(a) of the questionnaire, “N/A, ” and that in her mind, “N/A” means not applicable. Id. 15:10-17.

         FD Beneman referred Juror 86 to Question Three, Part A:

Please describe briefly any court matter in which you or a close family member were involved as a plaintiff, defendant, witness, complaining witness or a victim.

Juror 86 Ex. 2 at 1. Juror 86 described her understanding of the terms, plaintiff, defendant, witness, complaining witness, and victim. Id. 15:23-16:22. Juror 86 said that she had gone to court on two occasions, once as a witness in a matter involving her sister's neglectful raising of her daughter and again when she was divorced. Id. 16:23-17:18. She was married to her current husband in 2013 and she was aware that he had gone to court for his divorce and for an operating under the influence charge. Id. 17:25-18:9. She stated she was satisfied with the outcomes of both her and her husband's involvement with the court system. Id. 17:12-18; 18:7-9.

         Juror 86 confirmed she has two sons. Id. 18:10-11. The son whose criminal record was stipulated is the older son. Id. 18:23-24. Regarding her younger son, she was aware, as of the fall of 2013, that he had been to court on a speeding charge, for possession of tobacco by a minor, and for possession of a “small amount of pot.” Id. 18:25-19:5. He had gone to court for these matters on separate occasions. Id. 19:6-8. In fact, she thought she had gone to court with him on some, perhaps all the charges. Id. 19:9-19. She testified that she was satisfied with the outcome of her younger son's court cases. Id. 19:20-22.

         She was asked about her older son. Id. 19:23-24. She testified that she was aware that he had gone to court, but she stated she did not know why he had done so. Id. 19:25-20:6. She admitted that she had visited her older son at the Kennebec County Jail, but she said that she did not know why he was in jail. Id. 20:7-16. In fact, she testified that she did not know why he was in jail until December 2018 when she met with FD Beneman. Id. 20:17-18.

         Juror 86 stated that she did not recall taking checks on several occasions to the office of Leonard Sharon on her older son's behalf. Id. 20:21-23. But she recalled writing checks to Mr. Sharon for his assistance to her son in some kind of a legal matter. Id. 20:24-21:5. She said she did not know the specifics of why her son had hired Mr. Sharon, and even as of her February 1, 2019 testimony, she did not know the specifics. Id. 21:6-10. Although she knew that her son hired Mr. Sharon, she explained that her son did not have a checking account and that she would write checks for him. Id. 21:11-15. She said that she did not pay Mr. Sharon out of her own funds, instead her son deposited money in her account, and she wrote the checks based on his deposits to pay Mr. Sharon. Id. 21:11-21. Juror 86 confirmed that the remaining answers on page one of Juror 86 Exhibit Two were accurate. Id. 21:22-22:19.

         Turning to the second page of Juror 86 Exhibit Two, Juror 86 confirmed that she did not date the form, sign the form, or complete any of the information on the second page. Id. 22:20-23:7. She testified that even reviewing the juror questionnaire did not assist her ability to remember how she had answered Juror 86 Exhibit Two when she filled it out. Id. 23:8-24. Juror 86 did not recall filling out Juror 86 Exhibits One or Two and looking at the forms did not refresh her recollection. Id. 23:25-24:10.

         Juror 86 recalled coming to the federal courthouse in December 2013 for a jury selection, but she was not selected in December. Id. 24:16-22. She stated that no one asked her any questions about Juror 86 Exhibits One and Two. Id. 24:23-25:5.

         On January 8, 2014, Juror 86 returned to federal court for jury selection and she did not recall anyone showing her Juror 86 Exhibits One or Two or pointing out that Juror 86 Exhibit Two had not been completed. Id. 25:6-16. Asked whether she recalled the magistrate judge asking the jurors whether there was anyone on the panel who themselves personally or a close family member has had any experiences involving controlled substances, illegal drugs, specifically marijuana, that would affect their ability to be impartial, she did not recall answering the question, but she said she thought it “did not pertain to me.” Id. 26:9-20. She explained: “Because I stay neutral; I don't form judgments prior to knowing the full story.” Id. 26:21-23. She testified that the fact her sons had resolved past matters that involved marijuana would not have affected her impartiality. Id. 27:7-10 (“No, not at all”).

         FD Beneman quoted another question from the magistrate judge: “Is there anyone on the jury panel who has strong beliefs about the legalization or continued illegality of marijuana, either way, that would affect your ability to be fair and impartial in rendering a verdict in this case.” Id. 27:15-18. Juror 86 did not recall responding to that question, but she said that she would not have responded because she “did not have an opinion either way.” Id. 27:15-22. Juror 86 said she did not have opinions about marijuana in 2013 that would have affected her ability to be fair and impartial. Id. 27:23-28:1. When posed the final, overall question from the magistrate judge - whether there was anything that would have interfered with her ability to be a fair and impartial juror - Juror 86 reiterated that she felt she could be fair and impartial and, looking back on the answers she gave, she still believed as of February 1, 2019 that there was nothing that made it difficult for her to be a fair and impartial juror. Id. 28:5-29:13.

         2.Cross-examination: Thomas Hallett

         Attorney Thomas Hallett cross-examined Juror 86 on behalf of Malcolm French. Id. 29:19-20. Mr. Hallett directly questioned Juror 86 as to whether she had a problem with her memory, which she denied. Id. 30:16:17. Mr. Hallett pointed out the number of occasions where Juror 86 had contact with the court system-her second son going to court for marijuana, her divorce, gaining custody of her sister's daughter, her son being in jail in 2003, her paying Attorney Sharon in 2010-and he asked whether she recalled thinking of any of these contacts when she responded to Question 3(a). Id. 30:1-20. She responded that she did not recall thinking of these matters because “I did not think it was relevant.” Id. 31:22-23. When pressed, she clarified that she did not think of these instances when completing the forms. Id. 32:1-10. In fact, she agreed that she had “no recollection” about completing the forms. Id. 32:11-21.

         Juror 86 also agreed that an honest answer to Question 3(a) would have included every time she had gone to court. Id. 32:25-33:3. Mr. Hallett asked:

Q. Now, Mr. Beneman asked you a question if you had recalled, when answering the voir dire questions, that both of your sons had gone to court for marijuana, right? Do you remember the question?
A. Yes.
Q. And you answered that that didn't impact your partiality.
A. Correct.
Q. So at the time you answered that question, you knew that both of your sons had gone to court for marijuana, right?
A. Yes.

Id. 33:14-24. Juror 86 could not recall when she learned that her sons had gone to court for marijuana, but she acknowledged that she knew they had done so when she completed the jury questionnaire. Id. 33:25-34:14. She denied, however, knowing what her older son's exact charges had been. Id. 34:15-18. She testified that she “remember he was pulled over, and he never talked to me about it.” Id. 34:19-23. He told her that he had to go to the hospital that day and this scared her. Id. 35:1-16. She confirmed that her older son has had a health issue but denied that his smoking marijuana concerned her. Id. 35:18-23. She denied knowing how much marijuana either of her sons smoked. Id.

         She was asked about her 2003 visit to her older son at the Kennebec County Jail. Id. 36:8-10. Although she did not know why he was in jail, she knew it was not for murder but could not recall if it was for theft. Id. 36:11-17. She reiterated that she did not know why he was in jail. Id. 36:18-20. She had never before been to jail and found it scary. Id. 36:23-37:1. She said she was nervous, but she was not worried about her son's physical safety or his health. Id. 37:11-18. She spent only “a few minutes” with her son and spoke to him “a little.” Id. 37:22-25. Although she did not find the situation heartbreaking, she agreed that she was sad and upset but denied she was angry. Id. 38:5-16. She reiterated that she never asked him why he was there and first learned why from Mr. Beneman. Id. 38:17-24.

         Mr. Hallett asked Juror 86 a series of questions about a juvenile proceeding involving her older son that took place in 2001. Id. 42:14-45:18; see French Ex. 18. Juror 86 recalled she reported her son to the police after he forged one of her checks and stole from her. Id. 42:25-43:3. However, she maintained that she did not recall what happened after that. Id. 42:23-24. Although the paperwork indicates she was present at a juvenile proceeding, she testified that she did not remember whether she was there and did not recall the incident until her February 1, 2019 testimony. Id. 45:9-20.

         Mr. Hallett asked Juror 86 about her recollections of the voir dire on January 8, 2014. Id. 46:21-51:1. Juror 86 confirmed that she had very little memory of what had occurred during jury voir dire, whether she had thought about her sons' marijuana smoking and charges during the voir dire, whether she had thought about her son being in jail. Id. Juror 86 could not walk through her thought processes that day, because she could not remember. Id.

         Mr. Hallett asked Juror 86 about her being contacted by FD Beneman and she agreed that she was shocked and very upset. Id. 52:20-24. She denied, however, that Attorney Beneman had told her that she could be in trouble. Id. 53:2-4. Knowing that she had answered the jury questionnaire under oath, she realized that if she recalled giving an inaccurate answer, she could get in trouble. Id. 53:18-54:14.

         3. Cross-examination: William Maddox

         Upon questioning by Attorney Maddox, Juror 86 testified that she recalled being in the same courtroom, but it was during the jury trial. Id. 54:24-55:4. She did not recall whether jury selection was conducted in the same courtroom. Id. 55:5-7. She had some memory of being in the courtroom during voir dire, but her memory was not precise. Id. 55:8-25. She was not sure whether when she participated in jury selection in December 2013, she was in the same courtroom. Id. 56:1-5. She had no specific recollection of jury selection in December 2013 and whether the same judge presided at both the December 2013 and January 2014 jury selections. Id. 56:6-12.

         Turning to Juror 86 exhibit one, the juror information form, she reiterated that she did not recall completing that form. Id. 57:9-11. She said that if she completed the same form today, she would probably be able to answer all the questions right away without searching for information. Id. 57:9-16. She had retired from state employment on January 1, 2012. Id. 57:19-25. She had always worked for the Department of Health and Human Services and she worked there for thirty-six years and some months. Id. 58:8-18.

         Juror 86 recalled that during jury voir dire, there were questions about marijuana. Id. 58:19-59:3. She said she paid attention to the judge's questions during voir dire and recalled that some jurors were excused for cause.[1] Id. 59:7-14. She denied that she was affected by the fact that some jurors had been excused. Id. 59:15-16.

         She confirmed that both her sons had smoked marijuana. Id. 59:17-19. She did not know whether they or anyone else had smoked marijuana in her home. Id. 59:20-24. She smoked marijuana in her home years and years ago for a short time. Id. 59:25-60:3.

         She was asked about a Maine marijuana referendum and said that she does not have an opinion one way or the other as to whether marijuana should be legalized. Id. 60:9-15. She explained that whether marijuana was legalized would not matter to her. Id. 60:9-16.

         She denied that anyone had ever questioned how good her memory is. Id. 60:17-22.

         4. Cross-examination: Todd Lowell

         Assistant United States Attorney Todd Lowell questioned Juror 86. Juror 86 denied that when she responded to Question 3 on the jury questionnaire, she was trying to hide anything. Id. 61:13-18. She denied that she deliberately gave false information on the questionnaire. Id. 61:19-62:20. She said she did not have a burning desire to be on the jury or to avoid jury service. Id. She recognized that she had a civic duty with respect to jury service and she was willing to fulfill that duty if called. Id. 62:25:63:3.

         Regarding jury selection in January 2014, although she did not recall of the details of jury selection, Juror 86 denied that she had provided any deliberately false information in response to the judge's questions. Id. 63:4-10. She denied that she failed to answer a question thinking that it would make her more or less likely to be on the jury. Id. 63:11-14. She listened carefully to the judge's questions, took them seriously, and answered or responded to them accurately. Id. 63:15-25.

         Juror 86 agreed that she had only limited experience with the court system and very limited information about her sons' experiences with the criminal justice system. Id. 64:1-5; 65:1-9. She testified that this limited information did not affect her ability to be fair and impartial. Id. 64:6-8. She confirmed that she did not know either Malcolm French or Rodney Russell before the trial, that she has no bias against people accused of crimes, that she had no bias against people accused of drug crimes, that she does not feel any animosity against people accused of growing marijuana, and that she does not feel any animosity against people accused of criminal offenses. Id. 66:21-67:11.

         5. Re-cross-examination: Thomas Hallett

         Turning again to the January 8, 2014 jury selection, Juror 86 confirmed that although she did not fully recall the magistrate judge's questions, she recalled the oath but not the specific questions. Id. 67:22-68:6. She also acknowledged that she did not know what was going on in her mind on January 8, 2014. Id. 68:10-16. She admitted that she does not remember thinking at the time of jury selection about her younger son smoking marijuana or being charged with it. Id. 68:17-23. Nor does she remember thinking about her older son being charged with marijuana possession or the juvenile incident. Id. 68:24-69:6. She does not recall thinking about any of the court incidents. Id. 69:7-9. Although she had testified at the February 1, 2019 hearing to what she would have done on January 8, 2014, she did not recall what was going through her mind in 2013 or 2014. Id. 69:22-25. She agreed that she had not included any of this information in response to Question 3 and had not been brought to sidebar during the jury selection process and questioned by the judge. Id. 70:14-23.

         Attorney Hallett asked:

Q. For purposes of the record here, if - - at the time you were doing the voir dire, right - -
A. Right.
Q. - - that you were here, your younger son had been charged with marijuana possession, or something having to do with marijuana, right?
A. Yes.
Q. And your older son had also been charged with something to do with marijuana, right?
A. Yes.
Q. And you did not - - and you knew that at the time.
A. Yes.
Q. But you did not respond to the marijuana question - -
A. No.
Q. - - or you don't remember; fair to say?
A. Yes.
Q. Okay. Do you know if the marijuana charge you knew about your older son was the one where he was hospitalized or not?
A. I'm not sure.
Q. It could have been another one?
A. It could have been.
Q. Okay.
A. I don't remember.

Id. 71:1-25.

         6. Re-cross-examination: William Maddox

         In re-cross-examination, Attorney Maddox asked about whether Juror 86 had been asked individualized questions in December 2013 and she replied that she did not remember but did not believe so. Id. 72:7-10. She did not recall what the December 2013 case was about. Id. 72:11-12. She did not know whether the judge had excluded her or whether she was just not picked. Id. 72:13-15.

         7. Re-cross-examination: Todd Lowell

         In re-cross-examination, Juror 86 agreed that she took jury service seriously, including the obligation to be truthful during the jury selection process. Id. 72:23-74:4. She testified that if she believed she could not be fair and impartial when responding to the magistrate judge's questions, she would have responded affirmatively when asked. Id. 73:5-10.

         E. Edward's Testimony

         Attorney Hallett called Edward, Juror 86's husband, to testify. Id. 74:8. Attorney Hallett asked Edward about whether he was aware that his wife's older son had been arrested for marijuana. Id. 75:16-76:1. Edward could not recall when the arrest took place, but he thought it might have been around the time of Edward's father's death. Id. 76:2-6. He was later informed, however, that Edward's father was still alive when Juror 86's older son was arrested. Id. 76:7-8. Edward noted that the older son's father had died in 2007. Id. 76:10-12. Edward stated that he was aware of the 2002-03 marijuana charge. Id. 76:10-15. Edward said that he found out about the marijuana charge later and he supposed that other family members knew about it. Id. 76:22-25. He confirmed that Juror 86 knew about it. Id. 77:1-2.

         F. Dr. Charles Robinson's Testimony

         1. Direct Examination: Thomas Hallett

         Dr. Charles Robinson is a forensic psychologist who has testified as an expert in a dozen states around the country. Id. 79:18-80:8. He has been qualified as an expert in memory. Id. 80:9-20. Dr. Robinson explained the Four R's for creating memory: Reception (or encoding), Retention, Retrieval, and Report. Id. 81:24-82:3.

         Dr. Robinson testified that people tend to remember events when the occurrence is emotionally colored. Id. 83:8-84:13. Dr. Robinson testified that the episode in which Juror 86's son was involved in the juvenile proceeding would, in his view, have been coded into Juror 86's emotional memory because of the parental bond. Id. 84:16-85:20. Attorney Hallett asked about the marijuana charges against both sons, Juror 86's going to court to get custody of her sister's daughter, Juror 86's divorce, and her husband's operating under the influence charge, and Dr. Robinson opined that these events would have elicited an emotional response, such as sadness, anger and guilt. Id. 85:21-87:5.

         Dr. Robinson reviewed Juror 86 Exhibit 2, the juror questionnaire, and testified that the questionnaire, if read and understood by a normal person, would have evoked schema, events associated “through proximity, fear arousal, and things like that.” Id. 87:6-88:3. He opined that it was “highly probable” that Question 3 would have triggered memories of the earlier described court events. Id. 88:17-21.

         2. Further Examination: William Maddox

         Dr. Robinson testified about the difference between short-term and long-term memory. Id. He said there is no set time when short-term memory transitions into long-term memory because it depended upon the conditions of emotional arousal; the higher the arousal, the more rapid the consolidation. Id. 89:4-19. Long-term memory, however, is more accurate than short-term memory. Id. 89:20-22. He said that females have superior episodic memory over males. Id. 90:2-5. He did not know whether when a parent and child experience the same event outside the norm, the parent or the child would have a more accurate memory. Id. 90:6-10.

         3. Cross-Examination: Todd Lowell

         Dr. Robinson agreed that a person would not be able to perform the four memory formation functions if she did not read the question or if she did not read it carefully. Id. 92:15-23. He acknowledged that he has not assessed Juror 86 and the only time he had heard her speak was during her testimony in the courtroom. Id. 93:23-94:7. He had not conducted any tests or examinations on her and therefore, in his words, his opinions were a “generic analysis of the facts in the case as they relate to social cognition.” Id. 94:8-12.

         4. Cross-examination: David Beneman

         Mr. Beneman questioned Dr. Robinson about the fact that Juror 86 failed to complete the form, answered no questions on the back page, and failed to sign it. Id. 98:21-22. Dr. Robinson agreed that Juror 86's failure to complete the back page of the questionnaire suggested a lack of awareness on her part. Id. 98:23-25. In fact, if Juror 86 folded the questionnaire to place it in the mail, the fact there was a second side would have been apparent to her unless she was not paying attention. Id. 99:1-17.

         5. Redirect Examination: Thomas Hallett

         On redirect, Dr. Robinson testified that based on her answers to the questions on the first page of the questionnaire, it seemed to him that she was paying attention. Id. 99:23-100:16.

         6. Further Examination: William Maddox

         Attorney Maddox asked Dr. Robinson about the significance, if any, of the sons' criminal records, and Dr. Robinson replied that he thought the sons' criminal records were “not only significant, but consequential.” Id. 101:3-11. He stated that “[u]nless this form was essentially randomly filled out, a person would have all the cues necessary to provide the information that's called for, particularly in Question 3.” Id. 101:12-16.

         7. Re-cross-examination: Todd Lowell

         AUSA Lowell asked Dr. Robinson about the fact that Juror 86 had answered “N/A” to two of the questions. Id. 102:2-103:19. Dr. Robinson thought that the questionnaires' “cues were just too rich” for her, if she read the questionnaire, not to have remembered “those things that are targeted by these questions.” Id. 102:19-103:9.

         AUSA Lowell pointed out to Dr. Robinson that Juror 86 answered Question Six inaccurately as well, because it asked her “duties at your present place of employment” and she wrote “Human Resource/Payroll, ” when she had retired and had no “present place of employment.” Id. 103:20-105:1.

         8. Re-cross Examination: David Beneman

         FD Beneman pointed out that if Juror 86 had read Question 3 with an “are” and not a “were, ” her answer would have been accurate. Id. 105:8-21.

         9. Re-re-direct Examination: Thomas Hallett

         Mr. Hallett pointed out that Question 3(a)-“Was the outcome satisfactory to you”-is in the past tense and suggested that there had been an outcome. Id. 106:2-13. Also, Mr. Hallett noted that she accurately responded to Question 5 by saying that she had retired and that she may have interpreted Question 6 as asking about her prior occupation. Id. 106:14-22.

         III. THE POSITIONS OF THE PARTIES

         A. Malcolm French's Position

         1. Whether Juror 86's Answer to Question 3 was Honest

         On February 21, 2019, Malcolm French filed a post-hearing memorandum. Second Supp. Mem. in Support of Def. French's Mot. for New Trial (ECF No. 836) (French Mem.). After recounting some of the history of the case and the evidence presented at the February 1, 2019 hearing, Mr. French turned to “the first part of McDonough's[2] binary test, ” which focuses on “whether Juror 86 failed to answer honestly one of more material voir dire questions.” Id. at 14. Reviewing Juror 86's February 1, 2019 testimony, Mr. French concluded that Juror 86's response of “N/A” to Question 3 “was not honest.” Id. at 14-15.

         2. Whether a Correct Answer Would Have Provided a Valid Basis ...


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