United States Court of Appeals For the First Circuit
Nos. 19-1605, 19-1632
UNITED STATES OF AMERICA,
Appellee,
v.
MALCOLM A. FRENCH and RODNEY RUSSELL,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Kayatta, Barron, Circuit Judges.
Jamesa J. Drake, Thomas F. Hallett, Hallett, Whipple & Weyrens, PA, and Drake Law, LLC on brief for appellant Malcolm French. William S. Maddox on brief for appellant Rodney Russell. Halsey B. Frank, United States Attorney, and Julia M. Lipez, Assistant United States Attorney, on brief for appellee.
October 7, 2020 KAYATTA, Circuit Judge. Malcolm French and Rodney
Russell sought a new trial after a jury found them guilty of
charges arising out of a large-scale marijuana-farming operation.
They argued that one juror had lied in filling out the written
questionnaire given to prospective jurors prior to trial. Agreeing
in part, we vacated the district court's order denying their
request for a new trial and remanded the case for further
proceedings to investigate the alleged juror misconduct. United
States v. French, 904 F.3d 111, 114, 125 (1st Cir. 2018).
Following further proceedings on remand, the district court again
denied the motion for a new trial. French and Russell now appeal
a second time, claiming that the district court improperly
exercised its discretion in fashioning a procedure to investigate
the defendants' claims and in concluding that a new trial was not
warranted. For the following reasons, we reject the appeal and
affirm the district court's order dismissing the defendants'
motion for a new trial.
I.
A.
French and Russell were charged after substantial
marijuana-cultivation sites were found on French's property in
September 2009. As we recounted in the defendants' first appeal,
French controlled some 80,0000 acres of land in Washington County,
Maine, and employed Russell as an office manager for his logging
- 2 - business. French, 904 F.3d at 114. After an investigation by
Maine law enforcement, a grand jury indicted both defendants for
conspiring to manufacture marijuana, manufacturing marijuana,
maintaining drug-involved premises, harboring illegal aliens, and
conspiring to distribute and possess with intent to distribute
marijuana. Id. A jury trial ensued. Numerous eyewitnesses
testified as to French and Russell's involvement in marijuana
production, while both defendants testified and denied
culpability. After the jury convicted French and Russell on all
counts, the district court sentenced French to 175 months'
imprisonment and Russell to 151 months' imprisonment. Id.
Soon after sentencing, defense counsel learned that
Juror 86 -- who sat on the jury in French and Russell's trial --
has a son who was a small-time marijuana dealer. Id. at 114-15.
Upon receipt of this information, French's counsel investigated
and learned that the older of Juror 86's two sons had been
convicted of marijuana and other drug-related offenses between
2002 and 2014. Counsel also learned that Juror 86 had visited her
older son in jail on one occasion and had paid legal fees arising
out of his offenses on several others. Id. at 115.
Juror 86 had not disclosed this information about her
son's involvement in the criminal legal system on a questionnaire
that the Clerk's Office distributed to her when she was called for
- 3 - jury duty in October 2013, prior to jury selection. Question 3 of
the questionnaire read as follows:
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. [Prospective jurors were given space to write] b.) Was the outcome satisfactory to you? [Prospective jurors were given "yes" and "no" check boxes here] c.) If no, please explain. [Prospective jurors were given space to write]
Id. (alterations in original). Juror 86 had written only "n/a"
after part (a) and left parts (b) and (c) blank. She also had not
completed the second page of the questionnaire, which contained
six additional prompts on other matters and directed prospective
jurors to sign and declare under penalty of perjury that they had
answered all the questions truthfully and completely. Id.
Nor had Juror 86 supplied the information about her son's
criminal history in response to several questions posed to
prospective jurors by the magistrate judge during oral voir dire
in January 2014, including the following question:
Now, as you've heard for a couple hours now this morning, this is a case about marijuana, which is a controlled substance under federal law. Is there anyone on the jury panel who themselves personally or a close family member has had any experiences involving controlled substances, illegal drugs, specifically marijuana, that would affect your ability to be impartial? And by any experiences, I'm talking about whether you or a close family member have been involved in a situation involving substance
- 4 - abuse or involving treatment that -- maybe professionally treating that condition, or being the victim of a crime involving those substances, or being the perpetrator of a crime where someone alleged those substances were involved. Any . . . experiences regarding illegal drugs, and specifically marijuana, but any illegal drug, controlled substance under federal law, is there anyone who's had that sort of experience?
Id. (alteration in original).1
In first moving for a new trial in the spring of 2016,
the defendants argued that Juror 86's responses to the
questionnaire and her lack of response to the oral voir dire
questions were dishonest. Id. at 116, 120. They maintained that
if Juror 86 had answered these questions honestly, the court likely
would have stricken her for cause. In addition to seeking a new
trial, the defendants requested an evidentiary hearing to question
Juror 86 about her responses. Id. at 116. The district court
denied the defendants' motion for a new trial in November of 2016,
1 Juror 86 also did not respond to another question posed by the magistrate judge: Is there anyone here who knows of any other reason, some question I haven't asked or something that's been sitting there troubling you, why hasn't she asked me about this, those attorneys, those people should know about this fact and it might interfere with me being a fair and impartial juror or it might appear that it would interfere, is there any other fact that you feel would affect in any way your ability to be a fair and impartial juror? French, 904 F.3d at 115.
- 5 - finding Juror 86's answers, or lack thereof, insufficient to
compel a new trial or an evidentiary hearing. Order Denying Motion
for New Trial at 24–25, 43–44, United States v. French, No. 12-
cr-00160-JAW (D. Me. Nov. 16, 2016), ECF No. 734.
On appeal, we found that the allegations of Juror 86's
bias presented a "colorable or plausible" claim of the type of
juror misconduct that might require a new trial. French, 904 F.3d
at 120. However, because the record as it then stood did not
indicate why Juror 86 answered as she did, we could not
definitively determine whether she was unduly biased. Id. at 118.
We therefore vacated the district court's denial of the defendants'
motion and remanded for further proceedings on the motion for a
new trial. Id. at 125.
B.
On remand, the district court held an evidentiary
hearing to resolve the two questions on which the new-trial motion
depends: "(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"? Prior to the hearing, the district
court twice met with counsel to discuss what procedures to adopt
to investigate the allegations of Juror 86's bias. The parties
shared views on issues such as how to approach Juror 86, the
likelihood that she would invoke her Fifth Amendment rights,
whether the Court should appoint counsel to represent her, and
- 6 - whether the Court or counsel should do the questioning at the
hearing. Over the defendants' objections, the district court
appointed the Federal Defender for the District of Maine, Attorney
David Beneman, to represent Juror 86 at the evidentiary
hearing. The district court also decided that, contrary to the
government's preference, it would not ask Juror 86 questions from
the bench during the hearing. Instead, the district court ruled
that Attorney Beneman would perform a direct examination of
Juror 86, followed by cross-examination by the government and
counsel for the defendants, notwithstanding the defendants'
argument that they should be allowed to question Juror 86 first
because they had the burden of proof.
During the evidentiary hearing held on February 1, 2019,
the parties stipulated to the relevant criminal record of
Juror 86's older son. Most notably for our purposes, that record
included: a 2002 state-court charge for unlawful furnishing of
marijuana (which led to a misdemeanor conviction for unlawful
possession of marijuana); a 2005 state-court charge for unlawful
furnishing of cocaine (which led to a misdemeanor conviction for
possession of cocaine); and a 2011 state-court misdemeanor
conviction for unlawful possession of marijuana. Counsel further
stipulated that when prospective jurors are contacted by the
Clerk's Office and complete the relevant jury selection
questionnaires, they do not know whether they are being called for
- 7 - a civil case or a criminal case. Several exhibits were admitted,
including copies of three personal checks made out by Juror 86 in
2010 to a lawyer in relation to services provided to her older
son; a record that Juror 86 visited her older son at the Kennebec
County Jail in October 2003; and a petition referencing a juvenile
proceeding in which Juror 86's older son was charged with theft
and forgery in 2001.
The evidentiary hearing lasted for approximately two and
a half hours. On direct examination, Juror 86 testified that she
did not recall filling out the questionnaire in the fall of 2013
and that looking at the forms did not refresh her memory. Juror 86
nonetheless agreed that the handwriting was hers. Regarding
Question 3(a), which asked her to describe "any court matter in
which you or a close family member were involved," she said that
her answer ("n/a") was correct because it meant "not applicable."
She nevertheless agreed that she had herself gone to court on two
occasions: once as a witness in a matter concerning her sister's
negligent parenting, and once when she was divorced. She further
testified that her current husband had also gone to court for a
divorce with a prior spouse and for an operating under the
influence charge. As for her two sons, Juror 86 testified that
her younger son had been to court on charges for speeding,
possession of tobacco by a minor, and possession of a "small amount
of pot," and she believed that she had accompanied him on some or
- 8 - all occasions. Juror 86 also admitted that her older son had gone
to court, that she had visited him at Kennebec County Jail, and
that she had written checks to a lawyer to pay for his legal
services. However, she indicated that she did not specifically
know why her older son had hired a lawyer or what he was charged
with.
On cross-examination by defense counsel, Juror 86
maintained that she did not include this information about her
family members' involvement with the legal system on the
questionnaire because she "did not think it was relevant." Despite
visiting her older son in jail, Juror 86 stated that she had not
known the nature of the charges against him and only learned that
they had involved marijuana during conversations with
Attorney Beneman in advance of the evidentiary hearing. She
explained that she "remember[ed] he was pulled over," but that "he
never talked to [her] about it." When prompted about her presence
at a juvenile proceeding, Juror 86 recalled that she reported one
of her sons to the police after he forged one of her checks and
stole from her in 2001, but that she did not recall what legal
proceedings resulted.
With respect to the oral questions posed by the
magistrate judge as part of the voir dire process exploring matters
"that would affect [potential jurors'] ability to be
impartial," Juror 86 testified on direct examination that she did
- 9 - not remember answering the question of whether she or a close
family member had had any experiences with controlled substances,
particularly marijuana. She further stated that she thought that
the question "did not pertain to [her]" because she "stay[s]
neutral" and "do[esn't] form judgments prior to knowing the full
story." She added that her sons' involvement in matters concerning
marijuana would not have affected her ability to be impartial. As
to the question posed by the magistrate judge of whether anyone on
the jury panel had strong beliefs about the legalization of
marijuana that would interfere with the juror's ability to be fair
and impartial, Juror 86 did not recall responding, but suggested
she would not have responded because she "did not have an opinion
either way" that would have impeded her ability to be impartial.
As to a final question posed by the magistrate judge -- whether
there was anything that would have interfered with the prospective
juror's ability to be a fair and impartial juror in the case --
Juror 86 indicated that she felt that she could be fair and
impartial, and that she still believed that to be the case.
On cross-examination by the government, Juror 86 denied
that she had sought to hide or provide false information in her
answers to Question 3(a) and the questions posed by the magistrate
judge. She indicated that she had only a limited knowledge of her
sons' interactions with the legal system and stated that she did
not have a strong desire to be either on or off a jury or any bias
- 10 - or animosity against people accused of drug crimes, including
people accused of growing marijuana.2
Following the evidentiary hearing, French and Russell
filed renewed motions for a new trial. The district court denied
the motions. Despite finding that Juror 86 "failed to honestly
answer a material question on voir dire" by not disclosing numerous
court proceedings involving herself and her close family members,
including several involving controlled substances, the court
concluded that Juror 86 would have been able to separate her
emotions from her duties as a juror and that she would not have
been stricken for cause by a reasonable judge had she honestly
answered the questions posed. Considering the factors discussed
in Sampson v. United States, 724 F.3d 150, 165–66 (1st Cir. 2013),
the court reasoned that: (1) Juror 86 withheld information about
herself and about close family members -- her sons and her
husband -- which weighed in favor of the defendants; (2) Juror 86
was "unemotional" and "calm," a factor favoring the government;
(3) although most of the charges against Juror 86's sons were
distinct from the charges against French and Russell, the
2 Counsel for French also called Juror 86's husband to testify and asked whether he was aware that Juror 86's older son had been arrested for marijuana. He indicated that he was, but that he could not remember exactly when the arrest took place. In addition, French's counsel called Dr. Charles Robinson, a forensic psychologist and expert in memory, who suggested that Question 3(a) was of the sort that would normally trigger memories of earlier interactions with the court system.
- 11 - similarity of the older son's marijuana trafficking charge
slightly favored the defendants; (4) the scope and severity of the
inaccuracies slightly favored the government; and (5) no answer
had been found as to "why Juror 86 failed to accurately and
honestly answer Question 3 in October 2013, why she did not reveal
this information during voir dire in January 2014, [or] why she
testified in such a contradictory and confusing manner in February
2019." All together, the court concluded that "if the Magistrate
Judge and counsel had been made aware of Juror 86's sons' marijuana
convictions, the convictions would not have provided a valid basis
for a challenge for cause." The court therefore denied the motion
for a new trial, and this second appeal followed.
II.
"[W]e review claims that a trial court failed to conduct
an appropriate inquiry into allegations of jury taint for abuse of
discretion." United States v. Paniagua-Ramos, 251 F.3d 242, 249
(1st Cir. 2001) (citing United States v. Boylan, 898 F.2d 230, 258
(1st Cir. 1990)). Likewise, "[w]e review a district court's denial
of a motion for new trial for abuse of discretion." Id. (citing
United States v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999)).
The first of the two questions before us is whether the
district court abused its discretion in fashioning and executing
- 12 - a procedure on remand to investigate the defendants' allegations
of juror bias. After careful review, we conclude that it did not.
On their first appeal, we held that French and Russell
had raised "colorable or plausible" allegations of Juror 86's bias
in the district court, French, 904 F.3d at 120, and thus that a
"court-supervised investigation aimed at confirming and then
exploring further the apparent dishonesty was called for," id. at
117. When investigating allegations of juror bias, the "primary
obligation" of the district court "is to fashion a responsible
procedure for ascertaining whether misconduct actually occurred
and if so, whether it was prejudicial." Id. (quoting United States
v. Zimny, 846 F.3d 458, 465 (1st Cir. 2017)); see also United
States v. Rodriguez, 675 F.3d 48, 58 (1st Cir. 2012); Paniagua-
Ramos, 251 F.3d at 249-50 (explaining that the district court must
select "a sensible procedure reasonably calculated to determine
whether something untoward had occurred" and then "even-handedly
implement" it). The aim of such a procedure is "to ensure that
the parties 'receive[] the trial by an unbiased jury to which the
Constitution entitles them.'" United States v. Bristol-Mártir,
570 F.3d 29, 42 (1st Cir. 2009) (alteration in original) (quoting
Boylan, 898 F.2d at 289-90). However, in meeting this obligation,
"[t]he type of investigation the district court chooses to conduct
is within [its] discretion." French, 904 F.3d at 117. Because
"claims of jury taint are almost always case-specific," Paniagua-
- 13 - Ramos, 251 F.3d at 250, the district court takes responsibility
for appropriately calibrating its inquiry to the circumstances
presented. See Rodriguez, 675 F.3d at 61 (explaining that "the
circumstances of each case . . . will determine the level of
inquiry necessary").
"The touchstone" of our appellate review is
"reasonableness." Paniagua-Ramos, 251 F.3d at 249. "So long as
the district judge erects, and employs, a suitable framework for
investigating the allegation and gauging its effects, and
thereafter spells out [her] findings with adequate specificity to
permit informed appellate review, [the court's]
'determination . . . deserves great respect [and] . . . should not
be disturbed in the absence of a patent abuse of discretion.'"
Boylan, 898 F.2d at 258 (third alteration in original) (citation
omitted) (quoting United States v. Hunnewell, 891 F.2d 955, 961
(1st Cir. 1989)); see also Zimny, 846 F.3d at 472 (explaining that
the case law in this circuit "emphasize[s] the district court's
discretion in determining 'the scope of the resulting inquiry and
the mode and manner in which it will be conducted'" (quoting
Paniagua-Ramos, 251 F.3d at 250)).
In this case, the district court responded to the gravity
of the defendants' claims of bias with a formal evidentiary
hearing -- the gold standard for an inquiry into alleged juror
misconduct. Cf. French, 904 F.3d at 117. While we have not
- 14 - required that district courts always implement a full evidentiary
proceeding in response to an allegation of juror bias, in some
circumstances a formal hearing may be required. Id. The fact
that juror bias constitutes a structural defect "not susceptible
to harmlessness analysis," id. at 119, along with the difficulties
inherent in questioning a juror several years after the end of
trial, further rendered the district court's response appropriate.
Additionally, the procedures that the district court
adopted and implemented for the evidentiary hearing were rigorous
and well thought-out. During the hearing, Juror 86 testified at
length under oath, and all parties were permitted to be present
throughout the questioning and to cross-examine Juror 86. The
district court afforded wide latitude to counsel in asking
questions at the hearing and admitted evidence and stipulations.
This is not a situation where the court simply let the juror decide
for herself whether she was biased without investigating
further. Contra United States v. Rhodes, 556 F.2d 599, 601 (1st
Cir. 1977).
The defendants nonetheless contend that the court abused
its discretion in fashioning procedures to investigate Juror 86's
alleged bias. Russell challenges the court's decision to appoint
counsel for Juror 86, and both defendants object to the court's
- 15 - decision not to question Juror 86 from the bench.3 Neither of
these contentions persuades us.
1.
The defendants point to no case holding that a court
investigating juror bias or misconduct may not appoint counsel for
the juror. And we know of at least one reported case in which
another district court appointed counsel for a juror. See United
States v. Lawson, 677 F.3d 629, 640 n.13 (4th Cir. 2012).
Appointing counsel for Juror 86 posed advantages and disadvantages
for the court's inquiry. On the one hand, it may have increased
the likelihood that the juror would take the inquiry seriously and
would refresh her memory before showing up at the courthouse (as,
indeed, she did). On the other hand, it might have made her
responses more guarded. Additionally, appointing counsel
mitigated the potential consequences of the court's inquiry for
Juror 86 herself, including the possibility of contempt sanctions
and the potential financial burden of having to retain counsel
independently. These considerations, among others, call for
judgment and discretion, not a rule of law. Further, nothing in
Juror 86's actual testimony suggests that the investigation into
3 Russell also argues that the district court improperly "elevat[ed] 'motive' to be a sine qua non [of] proving reversible bias or a valid basis for cause." We address this argument as part of our discussion of the defendants' substantive arguments in Part II.
- 16 - her bias would have gone differently if the court had not appointed
counsel. Thus, we have no basis for finding that the district
court abused its discretion in choosing a "methodologically sound"
means of investigating juror bias. See United States v. Bradshaw,
281 F.3d 278, 291 (1st Cir. 2002).
2.
Nor do we find any abuse of discretion in the district
court's decision to rely on direct- and cross-examination by
counsel rather than questioning Juror 86 from the bench. The
appropriateness of questioning witnesses or jurors from the bench
varies depending on the circumstances. For example, while judges
are permitted to ask questions at trial, see Fed. R. Evid. 614,
such questioning is not always beneficial because it can give rise
to claims of favoritism and taint jurors' perceptions of a judge's
impartiality, see, e.g., United States v. Rivera-Rodríguez, 761
F.3d 105, 111 (1st Cir. 2014). By contrast, it is sometimes
preferable for judges to question potential jurors from the bench
during voir dire, see Fed. R. Crim. P. 24(a), so that counsel may
avoid making potential jurors uncomfortable and thereby avoid the
risk of prejudicing their clients before trial even begins.
Post-trial examinations of a juror present different
practicalities. For example, sometimes the focus of the
examination is obvious, making it most practical for the court to
simply ask what it needs to know. See, e.g., Zimny, 846 F.3d at
- 17 - 465–66; Paniagua-Ramos, 251 F.3d at 249–50; Tavares v. Holbrook,
779 F.2d 1, 2–3 (1st Cir. 1985). On other occasions, such as in
the circumstances presented in this case, protracted and far-
ranging inquiry may be required, making it less practical for the
judge to direct the questioning. Further, counsel need not be as
hesitant to interrogate a juror post-trial as they might have been
pre-trial because there is little to no risk that annoying the
juror will prejudice their clients. Thus, we see no obvious reason
why competing post-trial examinations of a juror by counsel would
be insufficient to reveal any bias held by that juror.
Against this background of alternative approaches that
can be tailored to the needs of the specific case, our standard of
review does not call on us to second-guess the district court's
decision to have competent counsel alone do the questioning. See
Paniagua-Ramos, 251 F.3d at 250 (declining "to second-guess the
lower court's judgment as to what methodology was best calculated
to get at the truth in this instance"); United States v. Ortiz-
Arrigoitia, 996 F.2d 436, 443 (1st Cir. 1993) ("The trial judge is
not . . . shackled to a rigid and unyielding set [of] rules and
procedures that compel any particular form or scope of
inquiry.").
Our decision in Bristol-Mártir, 570 F.3d at 43, is not
to the contrary. In that case, we found an abuse of discretion
because the jurors had not been questioned at all -- by the court
- 18 - or counsel -- as to whether they were unduly influenced by one
juror's presentation of improper outside research. Id.
Bristol-Mártir does not suggest that the district court must always
conduct the questioning. The defendants also point to Dyer v.
Calderon, 151 F.3d 970 (9th Cir. 1998), where the Ninth Circuit
admonished the trial court of its "independent responsibility to
satisfy [itself] that [an] allegation of bias is unfounded." Id.
at 978. Dyer, though, involved a situation where defense counsel
were not themselves in a position to aggressively question the
juror, as the trial was still underway. Id.
Russell's reliance on United States v. Resko, 3 F.3d 684
(3d Cir. 1993), does not help his position either. There, the
only effort made by the district court to investigate the claims
of juror misconduct was to distribute a questionnaire asking jurors
whether they had talked to other jurors during the trial and
whether they had formed an opinion as to guilt because of those
conversations. Id. at 688, 690. Neither the district court nor
counsel engaged in individualized questioning of the jurors, and
the responses to the questionnaire supplied insufficient
information to rout out any potential prejudice. Id. at 690-91.
In sum, the questioning undertaken by counsel was
sufficient to address the defendants' concerns of Juror 86's
bias. Indeed, the defendants complain of no question that they
were not allowed to ask Juror 86. Accordingly, we find no abuse
- 19 - of discretion by the district court in adopting and implementing
procedures to investigate the claims of juror bias on remand.
Turning to the defendants' substantive argument that the
district court erred in denying the motion for new trial, we again
find no abuse of discretion warranting a new trial.
"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 [defendant] must first
demonstrate that a juror failed to answer honestly a material
question on voir dire.'" French, 904 F.3d at 116 (emphasis
omitted) (quoting McDonough Power Equip., Inc. v. Greenwood, 464
U.S. 548, 556 (1984)). Second, the defendant must "further show
that a correct response would have provided a valid basis for a
challenge for cause." Id. (quoting McDonough, 464 U.S. at
556). The party seeking to overturn the jury's verdict bears the
"burden of showing the requisite level of bias by a preponderance
of the evidence." Sampson, 724 F.3d at 166.
The second element -- whether a correct response would
have given rise to a valid basis for a challenge for cause --
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 conclude . . . that the juror lacked
the capacity and the will to decide the case based on the
- 20 - evidence." Id. at 165–66. This inquiry is both context-specific
and fact-specific and must be based on the "totality of the
circumstances," including: "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.
(citations omitted).
The information about Juror 86's sons' involvement with
marijuana use and sales was plainly material to this case (although
she could not have known that when she deemed it "not
applicable"). It might have engendered strong emotions that would
cause her to perform poorly as a juror. It might have made her
sympathetic to defendants charged with marijuana usage. Or it
might have made her angry at someone who manufactured marijuana.
For these reasons, we previously concluded that Juror 86's
dishonest conduct raised a "colorable or plausible" claim of the
type of bias that could warrant a new trial. French, 904 F.3d at
120. Thus, an investigation of the facts was necessary. See id.
That investigation let much of the air out of the
balloon. No connection between Juror 86's sons and the defendants
was shown. The charges against her sons, while involving illegal
drugs, bore little relationship to the large-scale manufacturing
operation that the defendants were charged with running. Juror 86
- 21 - offered no hint that she held either the defendants or the
government responsible for her sons' circumstances. Further, none
of the drug crimes involved Juror 86 herself. In the judgment of
the experienced trial judge who watched her testify for over two
hours, she displayed no strong emotions that may have fueled a
bias. And there is no suggestion in the record that she lied to
get on the jury in this case.
The defendants place great emphasis on the fact that the
district court ultimately could not determine exactly why Juror 86
filled out her questionnaire inaccurately or failed to respond to
the relevant questions posed during oral voir dire. But the court
did exclude the explanations that would most likely cause
concern. Juror 86 was not a habitual liar; she did not employ
deceit in order to get on the jury in this case; and her conduct
was not the product of undue emotion. Further, as noted above,
Juror 86 was not a party to any criminal charges, and her sons had
no apparent connection with anyone involved in this case. While
not exhaustive, these findings left no likely explanation that
would reveal any disqualifying bias toward either the defendants
or the government.
Moreover, Juror 86 testified that she had possessed
limited information about the specifics of her sons'
charges. Juror 86 had herself smoked marijuana in the distant
past, indicated that she lacked strong opinions about the
- 22 - legalization of marijuana, and reiterated that her sons' marijuana
use did not particularly concern her. By contrast, the juror whose
bias led us to vacate a death penalty in Sampson expressed that
she was "deeply ashamed" about her daughter's conviction. 724
F.3d at 168; see also id. at 167 (observing that the juror "could
not discuss those matters candidly, unemotionally or, often,
coherently" (quoting United States v. Sampson, 820 F. Supp. 2d
151, 193 (D. Mass. 2011))).
Russell's reference to the example of Juror 10, who was
excused for cause by the magistrate judge based on her answers to
the juror questionnaire, does not change the result. Like the
juror in Sampson, and unlike Juror 86, Juror 10 had been "clearly
emotional" about her son's marijuana charges. Although the
defendants suggest that Juror 86 was unemotional because her
counsel had coached her on how to appear "calm," this assertion is
speculative and therefore does not disturb the experienced trial
judge's determination that Juror 86 was "remarkably unemotional."
Of course, the "reason behind the juror's dishonesty" is
important when considering whether a reasonable judge would strike
the juror for cause. French, 904 F.3d at 118 (quoting Sampson,
724 F.3d at 165-66). But not all motives are equally alarming.
As the Supreme Court has explained, while "motives for concealing
information may vary, . . . only those reasons that affect a
juror's impartiality can truly be said to affect the fairness of
- 23 - a trial." McDonough, 464 U.S. at 556. Here, the testimony
elicited at the evidentiary hearing and the district court's
findings eliminated the motives that usually tend to show bias,
and there is no suggestion in the record that Juror 86 had some
other motive that would cast doubt on her impartiality. We simply
have a juror who, as she explained, decided that the information
about her family was "not applicable." Although the reasons why
she felt that way remain unclear, the lack of clarity, by itself,
does not dictate a finding that she possessed a disqualifying
bias. Indeed, we see in the record little if any evidence that
Juror 86 was biased in any way adverse to the defendants.
The defendants assert that Juror 86's memory loss caused
the lack of clarity and that the burden should therefore be shifted
from them to the government, citing to the following cautionary
language in French:
If the staleness of the memories resulting from t[he] additional two-year period [of delay between the defendants' filing of a motion for new trial and our decision in French] becomes a problem that cannot be solved on remand, we think it only fair for that to cut against the government.
904 F.3d at 120. But the district court supportably concluded
that the record lacked evidence of any lapse in Juror 86's memory
caused by the two-year delay. The defendants object that the
district court should have held any and all lapses in Juror 86's
memory against the government -- including memory lapses resulting
- 24 - from the earlier period of time between jury selection and their
first motion for a new trial, as well as memory lapses resulting
from the later period of time between our decision in French and
the evidentiary hearing on remand. But this argument overlooks
the general rule that the party seeking to overturn the jury's
verdict bears the "burden of showing the requisite level of bias
by a preponderance of the evidence." Sampson, 724 F.3d at
166. Although our decision in French noted that an exception to
the general rule might apply if Juror 86's memory loss became "a
problem that [could not] be solved on remand," 904 F.3d at 120,
that possibility did not come to pass. To the contrary, as we
have already explained, the district court was able to exclude the
most obvious indicators of bias from the evidence that was in the
record. And, with those most concerning motivations excluded, the
defendants failed to posit any other concerning motive that might
explain the juror's conduct but that the passage of time prevented
them from uncovering.
The fact that a prospective juror has a family member
who has run afoul of laws against drug possession does not by
itself disqualify a juror from sitting on a jury in a case like
this. Rather, it invites further inquiry to see if the family
member's experience has likely affected the ability of the
prospective juror to be fair. In this instance, that follow-up
inquiry was doubly warranted because Juror 86 initially withheld
- 25 - reporting her sons' experiences. That withholding suggested that
she might have had strong feelings one way or the other concerning
criminal prosecutions relating to marijuana. As we have described,
the district court conducted that inquiry. In addition to
confirming that the experiences Juror 86 omitted were not her own,
the district court's inquiry turned up significant facts that were
not known at the time of the defendants' first appeal: It revealed
that the experiences of Juror 86's family members were quite
different from those of the defendants; that Juror 86 was not
especially emotional about the subject; and that any inference of
any bias adverse to defendants was weak. Although the inquiry did
not illuminate the exact reason for Juror 86's dishonest
conduct, it also did not yield any evidence that her dishonesty
was motivated by bias or that the facts she had concealed would
have otherwise affected her ability or desire to be
impartial. Based on this information, and after observing
Juror 86 testify for roughly two hours, the experienced trial judge
found that she lacked the type of bias that would disqualify her
- 26 - for cause.4 We hold, simply, that the trial judge did not abuse
his discretion in making that determination.
III.
Based on the foregoing, we affirm the district court's
denial of the defendants' motion for a new trial.
4 Accordingly, we reject Russell's argument that the district court improperly elevated motive to be a "sine qua non" of proving reversible bias. Similarly, we are not persuaded that the evidence other than the evidence of motive tilted toward disqualification.
- 27 -