United States Court of Appeals
For the First Circuit
Nos. 16-2386, 16-2392
UNITED STATES OF AMERICA,
Appellee,
v.
MALCOLM 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
Thompson, Selya, and Kayatta,
Circuit Judges.
Jamesa J. Drake, with whom Benjamin Donohue, Thomas Hallett,
Hallett, Zerillo & Whipple, PA, and Drake Law, LLC were on brief,
for appellant Malcolm French.
William S. Maddox for appellant Rodney Russell.
Renée M. Bunker, Assistant United States Attorney, with whom
Halsey B. Frank, United States Attorney, was on brief, for
appellee.
September 17, 2018
KAYATTA, Circuit Judge. After their convictions on
charges arising out of a large-scale marijuana-farming operation,
Rodney Russell and Malcolm French sought a new trial based on
claims that one juror lied in filling out the written questionnaire
given to all prospective jurors prior to trial, and that a second
juror lied in voir dire. As we will explain, we agree that the
district court's investigation concerning the answers given by one
of the jurors was inadequate, so we vacate its denial of the
defendants' motion for a new trial. We otherwise reject the
defendants' various other challenges to their convictions and
sentences.
I.
Malcolm French first entered the logging business as a
college student, contracting with landowners to cut down trees.
He grew the business, first hiring his own crew, and then buying
land of his own. By 2009, French -- either personally or through
various companies he controlled -- owned approximately 80,000
acres of land, including an area in Washington County, Maine, known
as Township 37. French employed co-defendant Rodney Russell as an
office manager of sorts, keeping the books for his businesses,
writing company checks, and using a company credit card.
In September 2009, Maine law enforcement discovered a
series of substantial marijuana-cultivation sites on French's
Township 37 property. Following an investigation, a grand jury
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indicted Russell and French 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. At trial,
numerous eyewitnesses described the direct involvement of Russell
and French in the marijuana production. According to those
witnesses, French hired one witness to recruit migrant workers to
clean the product, and both French and Russell handled incoming
payments from marijuana sales and sold the crop. The property
contained shacks for drying the crop. And one witness explained
how workers grew marijuana in wire baskets containing a fertilizer
called Pro-Mix that was purchased either through a credit card in
French's name or by Russell, via check or cash.
French and Russell both testified in their own defense,
denying culpability. French testified that he had previously
discovered marijuana elsewhere on his property and called a warden,
but the warden did nothing, and as a result, he chose not to alert
authorities when he discovered other growing operations. Asked to
explain his large purchase of the Pro-Mix fertilizer, he testified
that after a man named Steve Benson (who testified as part of
French's case-in-chief) inadvertently destroyed some marijuana,
the putative owners of that marijuana, "the Red Patch gang,"
demanded reimbursement, which Russell gave in the form of a large
amount of Pro-Mix. Evidently unpersuaded, the jury convicted
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French and Russell on all counts. Eventually, the district court
sentenced Russell to 151 months' imprisonment and French to
175 months' imprisonment. Transcript of Sentencing Proceedings at
135, 139, United States v. French, No. 12-cr-00160-JAW (D. Me.
Nov. 10, 2016), ECF No. 729 [hereinafter "Transcript of Sentencing
Proceedings"]. They now appeal both their convictions and their
sentences.
II.
We consider first the appeal from the district court's
denial of a motion for a new trial based on the alleged bias of
Juror 86.
A.
Shortly after sentencing, defense counsel reported that
they had just learned that a prisoner housed in the Somerset County
Jail with co-defendant Kendall Chase told Chase that Juror 86, who
sat on the jury before which the case was tried, was the mother of
a small-time marijuana trafficker. After Chase told French,
French's counsel investigated Chase's report. They learned that
Juror 86's son had indeed been convicted of marijuana and other
drug-related offenses multiple times between 2002 and 2014 arising
out of his use and sale of marijuana and cocaine. At one point,
Juror 86 visited her son in jail. She also paid the legal fees
arising out of his offenses on multiple occasions.
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The government does not challenge the accuracy of this
information concerning Juror 86, none of which had been disclosed
by Juror 86 in response to questions asked of her during the jury
selection process. As part of that process, prospective jurors
filled out a questionnaire, which included the following prompt:
3. 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]
Order Denying Motion for New Trial at 4, United States v. French,
No. 12-cr-00160-JAW (D. Me. Nov. 16, 2016), ECF No. 734
[hereinafter "Order Denying Motion for New Trial"]. Juror 86 wrote
"n/a" after part (a), and left parts (b) and (c) blank. She also
did not complete the second page of the questionnaire, which
contained six additional prompts and a space to sign and declare
under penalty of perjury that the prospective juror had answered
all the questions truthfully and completely.
When jury selection began, the magistrate judge asked
the following of the prospective jurors:
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
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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
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. at 5-6. Juror 86 did not respond to this question. Later in
the process, the magistrate judge asked:
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?
Id. at 6. Again, Juror 86 was silent.
In a motion for a new trial filed a week after
sentencing, defendants argued that Juror 86's answers to the
questionnaire and her lack of a response to oral voir dire
questions amounted to dishonest answers to material questions, and
that had the answers been honest, there would have been a valid
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basis for a challenge for cause. They also asked for an
evidentiary hearing to question Juror 86 about her answers.
Just over six months later, the district court denied
the motion in a written order. It first surveyed the possible
meanings of "n/a" as well as the term "court matter" in the
questionnaire, and also noted that it did not know "what exactly
Juror 86 was thinking when she wrote 'n/a' because defense counsel
did not seek to question her during voir dire." Id. at 21-23. It
went on to state that "[w]ith these ambiguities, the Court
concludes that the Defendants have not demonstrated that Juror 86
failed to answer honestly a material voir dire question." Id. at
23 (internal quotations omitted). At the same time, the district
court concluded that the response to the questionnaire was "likely
mistaken" and that "the question as to whether any close family
member -- her son obviously qualifies -- was involved in any court
matter should have elicited a response from Juror 86 that alerted
the magistrate judge and the attorneys . . . about her son's
involvement with court matters." Id. at 23-24. The district court
stated, however, that because this was mere mistake, and not
dishonesty, a new trial was unwarranted absent a more flagrant
showing of juror bias. Id. at 24-25. The district court also
held that defense counsel's failure to inquire further of Juror 86
based on her obviously incomplete questionnaire precluded
defendants from relying on the questionnaire to claim juror
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misconduct. Id. at 29-30. The district court found Juror 86's
non-answers to the oral voir dire questions similarly
inconsequential. Noting that the oral question, by its terms,
only asked for information that in the juror's opinion affected
her ability to be impartial, it reasoned that Juror 86 might well
have known of her son's criminal matters but felt that they did
not affect her ability to be impartial, and thus, a non-answer at
oral voir dire was appropriate. Id. at 32-36.
The district court also concluded that defendants had
failed to demonstrate that truthful answers would have offered a
valid basis for a challenge for cause. Id. at 36-42. Finally,
the district court found that the passage of two years from the
close of the trial cut against any request for an evidentiary
hearing. Id. at 44-50.
B.
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." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
556 (1984) (emphasis in original). "The outcome of this inquiry
depends on whether a reasonable judge, armed with the information
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that the dishonest juror failed to disclose and the reason behind
the juror's dishonesty, would [have struck the juror for cause]."
Sampson v. United States, 724 F.3d 150, 165–66 (1st Cir. 2013)
(emphasis added). In evaluating the juror's "capacity and . . .
will to decide the case solely on the evidence," id. at 166, the
court may consider factors including but not limited to "the
juror's interpersonal relationships; the juror's ability to
separate her emotions from her duties; the similarity between the
juror's experiences and important facts presented at trial; the
scope and severity of the juror's dishonesty; and the juror's
motive for lying." Id. (citations omitted).
Separate and apart from the showing that a defendant
must make to obtain a new trial in such cases, there is the question
of process. Specifically, to what extent should the district court
allow or conduct an investigation into an allegation of juror
misconduct? Given the important interest in the finality of trial,
trial courts should not accommodate fishing expeditions after a
verdict has been rendered, especially years after the fact,
conducted in the hope of establishing a toehold for a misconduct
claim. See, e.g., Neron v. Tierney, 841 F.2d 1197, 1205 (1st Cir.
1988) ("[C]ourts generally should be hesitant to haul jurors in
after they have reached a verdict to probe for potential instances
of bias, misconduct, or extraneous influences." (alterations and
internal quotation marks omitted)). At the same time, we have
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said that defendants seeking to establish juror misconduct bear an
initial burden only of coming forward with a "colorable or
plausible" claim. United States v. Zimny, 846 F.3d 458, 464 (1st
Cir. 2017). Once defendants have met this burden, an "unflagging
duty" falls to the district court to investigate the claim. Id.
(quoting United States v. Paniagua-Ramos, 251 F.3d 242, 250 (1st
Cir. 2001)). The type of investigation the district court chooses
to conduct is within the district court's discretion; it may hold
a formal evidentiary hearing, but depending on the circumstances,
such a hearing may not be required. Id. at 465. "[T]he court's
primary obligation is to fashion a responsible procedure for
ascertaining whether misconduct actually occurred and if so,
whether it was prejudicial." Id. (internal quotation marks
omitted) (quoting United States v. Rodriguez, 675 F.3d 48, 58 (1st
Cir. 2012)).
Here, the defendants came forward with factual
information fairly establishing that Juror 86 likely gave an
inaccurate answer to question 3 on the written questionnaire.
Further, the uncontested facts submitted by defendants also made
it quite likely -- although not certain -- that the juror's
inaccuracy was knowing. Defendants also showed that the correct
answer to question 3 may well have been quite relevant to assessing
the juror's ability to fairly sit in judgment in this case. The
mother of a drug user arrested for dealing to support his drug
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habit might have some strong thoughts about those who produce the
drugs.
The district court posited that perhaps "n/a" meant
something other than "not applicable." And the government supposes
that the juror may not have regarded her son's experience as
involving a "court matter." Perhaps, too, her son's prosecution
had left her hostile toward government prosecutors. Each
hypothesis is plausible, but insufficiently likely so as to warrant
rejecting without investigation the claim of juror misconduct as
improbable. The defendants' initial burden is only to establish
that their claim of juror misconduct is "colorable or plausible."
Id. at 464. They need not show at the outset that their claim is
so strong as to render contrary conclusions implausible. Nor need
the defendants support their claim initially with testimony from
the juror. In this circuit, counsel cannot even question the juror
until the court gives permission. See United States v. Kepreos,
759 F.2d 961, 967 (1st Cir. 1985). So a court-supervised
investigation aimed at confirming and then exploring further the
apparent dishonesty was called for.
In concluding otherwise, the district court placed great
weight on the fact that defense counsel did not ask Juror 86 more
questions at voir dire or bring to the court's attention the fact
that the juror did not complete or sign the questionnaire.
Concluded the district court, "it was the Defendants' own
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responsibility to recognize the problem and address the issue when
the voir dire commenced." Order Denying Motion for New Trial at
30. We disagree. As for question 3, taking "n/a" according to
its most customary meaning, there was no reason to ask any follow-
up. So the relevant inquiry is whether defendants effectively
waived any ability to complain about a possible lie by a juror in
responding to question 3 because defendants did not complain about
the juror's failure to answer other, unrelated questions and sign
the form.
Certainly, counsel could have insisted that the juror
finish the form and sign it. And we have no reason to doubt that
their failure to do so likely precluded the defendants from later
pointing to those omissions as a basis for any relief. We see no
good reason, though, to extend that preclusion to a request for
relief based on the later discovery that an answer actually given
was dishonest and materially false. Waiver is too strong a
sanction to be extended so broadly. Given no apparent connection
between question 3 and the unanswered questions, and no good reason
to conclude that answers to those questions likely would have
revealed the problem with the answer to question 3,1 it would be
unduly speculative to conclude that any insistence that Juror 86
1The unanswered questions asked for the names of any spouse,
educational background, criminal history, English-language
comprehension, and health.
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complete the questionnaire would have put either party in a
different position.
The district court was concerned, too, that the long
passage of time since trial would render it "very difficult . . .
to recreate what happened at voir dire." Id. at 47. That might
be the case, but then again it might well not, particularly if
Juror 86's reasons for answering inaccurately were strongly felt.
The only way to tell if the passage of time would have erased
Juror 86's memory of events would be to ask her to recall these
events, something the district court declined to do.
The district court also based its holding on a finding
that Juror 86 "honestly" answered question 3. Id. at 23-25. But
this conclusion was simply another application of the waiver theory
that we have just discussed and rejected, as the able district
court judge frankly acknowledged, in stating: "The Court does not
know what exactly Juror 86 was thinking when she wrote 'n/a'
because defense counsel did not seek to question her during voir
dire." Id. at 23.
Additionally, the district court decided that a correct
answer to question 3 would have produced no grounds to have
Juror 86 stricken for cause. Id. at 41-42. Even now, though, we
only know what the truthful answer to question 3(a) would have
been. What the answers were to parts 3(b) and (c), or to any
likely follow-up questions, remain mysteries. Moreover, we do not
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see how a court can say whether the juror in this instance was
unduly biased without knowing why she answered as she did. For
this reason, the ultimate inquiry under Sampson requires that the
court consider "the reason behind the juror's dishonesty." 724
F.3d at 165–66. Again, it seems unlikely that the district court
misconstrued Sampson, and more likely that its finding on this
point presumed the correctness of its ruling that waiver precluded
proof of dishonesty.
As to Juror 86's non-response during oral voir dire, we
agree with the district court that the questions posed were
ambiguous and thus Juror 86's lack of an affirmative response was
not itself cause for finding juror misconduct. For our purposes,
though, the important point is that nothing about the juror's
conduct at the voir dire served to put counsel on notice that the
answer to question 3 on the questionnaire was false.
C.
One major loose end remains. The district court also
concluded that even if Juror 86 had committed misconduct, there
was no prejudice to defendants because the government had a strong
case. Order Denying Motion for New Trial at 50. The government
latches onto this finding, contending that the case against
defendants was "overwhelming" and that following Wilder v. United
States, 806 F.3d 653, 659–60 (1st Cir. 2015), we should find any
error here to be harmless. Unsurprisingly, defendants disagree.
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They contend that to the extent harmless error analysis is
appropriate at all, the question of prejudice is not answered by
determining whether an unbiased jury would have convicted, but
rather, by determining whether the potentially biased juror was
actually biased.
Defendants have the better of the argument. Wilder is
distinguishable from the present case on several axes. First and
foremost, Wilder concerned a procedurally defaulted claim, raised
for the first time on a petition pursuant to 28 U.S.C. § 2255,
challenging a federal court conviction, and the Supreme Court has
made very clear that relief under section 2255 is only appropriate
when "actual prejudice" results to the defendant. Id. at 658
(citing Bousley v. United States, 523 U.S. 614, 622 (1998)). No
such categorical bar exists on direct appeal. Second, and perhaps
more fundamentally, the nature of the right violated in Wilder was
different than that at issue here. In Wilder, the petitioner
claimed to have been denied the right to a public jury selection
process and the right to be present for that process. Id. at 655–
66. The petitioner in Wilder made no claim that any member of the
jury was biased, only that he might have asked different questions
during voir dire thus securing a more favorable jury. Id. at 659–
60. Here, by contrast, defendants have made a colorable claim
that a biased juror was seated, and seek to investigate that claim
further. And since rejecting a claim of error as harmless
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presupposes the existence of the error in question, we would assume
in harmless error analysis that Juror 86 was, in fact, biased.
In any event, the decisive point is that we view the
presence of a biased juror as structural error -- that is, per se
prejudicial and not susceptible to harmlessness analysis. While
we have not previously stated the matter so directly, precedent
from this court and from the Supreme Court dictates that
conclusion. The Supreme Court has explained that, though
structural error is rare, it is the appropriate finding for
"defect[s] affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself,"
Arizona v. Fulminante, 499 U.S. 279, 310 (1991), and for those
errors that "deprive defendants of 'basic protections' without
which 'a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence,'" Neder v. United
States, 527 U.S 1, 8–9 (1999) (quoting Rose v. Clark, 478 U.S.
570, 577-78 (1986)). In that vein, the Supreme Court has held
that trial before a biased judge is structural error, Tumey v.
Ohio, 273 U.S. 510, 522-24, 535 (1927), as is trial before a jury
whose impartiality has been fatally compromised, Turner v.
Louisiana, 379 U.S. 466, 471–74 (1965).
In Sampson, we noted that "[i]f even a single biased
juror participates in the imposition of the death sentence, the
sentence is infirm and cannot be executed." 724 F.3d at 163
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(citing Morgan v. Illinois, 504 U.S. 719, 729 (1992)). We also
described the right to an impartial jury as "constitutional
bedrock." Id. While the concern for an impartial jury is
certainly at its highest when a defendant's life is on the line,
it is still highly significant when defendants face the prospect
of incarceration. Other circuits have squarely held that the
presence of a biased juror in a criminal case is structural error.
See Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008). We
think it only logical to agree and to state the rule clearly today:
The presence of a juror whose revealed biases would require
striking the juror for cause in a criminal case is structural error
that, if preserved, requires vacatur.
Because the presence of a biased juror is structural
error, the government's contention that its case against
defendants was very strong is of no moment. If defendants can
establish Juror 86's disqualifying bias after the investigation by
the district court, the conviction would necessarily be set aside
regardless of the strength of evidence.
Cognizant that the passage of time may create problems
on remand, defendants suggest that we skip remand altogether and
order a new trial. Defendants abandoned this position at oral
argument, and wisely so. While we appreciate that the passage of
time can cause memories to fade, we are aware of no case in which,
faced with a potentially biased juror and the need to investigate
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further, an appellate court has ordered a new trial without first
permitting the district court to investigate. We decline to do so
here.
However, to the extent that memories have faded in the
two years between the defendants' filing of their motion for a new
trial and this decision, we place the responsibility for that
possible loss of evidence at the feet of the government, not the
defendants. Defendants first became aware of the issue with
Juror 86 in March 2016, and filed their motion approximately one
month later, all while in the midst of preparing for sentencing.
That timeframe exhibits sufficient diligence on the part of
defendants. The government then had the option of acquiescing to
the defendants' request to bring Juror 86 in for an evidentiary
hearing, but elected to oppose it, resulting in now over two more
years of litigation on the issue. If the staleness of the memories
resulting from that additional two-year period becomes a problem
that cannot be solved on remand, we think it only fair for that to
cut against the government.
To sum up: Defendants' motion for a new trial based on
the alleged bias of Juror 86 presented a "colorable or plausible"
claim of the type of juror misconduct that could require a new
trial, and defendants did not waive the ability to raise such a
challenge. The district court was therefore required to do more
before ruling on the new trial motion. For this reason, we vacate
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the denial of the defendants' motion for a new trial based on the
possible bias of Juror 86 and remand for further proceedings on
that motion.
III.
Defendants also filed a separate motion for a new trial
based on the voir dire responses of another juror, Juror 79. Only
Russell, and not French, appeals the denial of this motion.
Defendants contend that Juror 79 gave a dishonest answer at voir
dire when he did not acknowledge knowing Steve Koenig, a trial
witness. Koenig is the executive director of a salmon habitat
restoration group, Project SHARE. At trial he testified that he
worked on land owned by Haynes Timberland and Malcolm French to
construct culverts on rivers so that salmon could pass through
them. He testified that although there were gates in Township 37,
he was regularly allowed on the land. Koenig's testimony was
uncontroversial and not by its nature conducive to raising
credibility questions.
Though he was called by the government, Koenig was
actually on French's witness list. Counsel included no further
information on this list, such as Koenig's job or employer or even
residence. The entire witness list, containing the names of twelve
potential witnesses, was read to the pool of potential jurors,
including Juror 79. As found by the district court after reviewing
an audio recording of voir dire, the magistrate judge mispronounced
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Koenig's name without any correction by counsel who presumably
knew his name. Order Denying Motion for New Trial at 34-35, United
States v. French, No. 12-cr-00160-JAW (D. Me. Apr. 27, 2015), ECF
No. 499. In response to general inquiry of the pool, Juror 79
gave no indication that he knew Koenig.
After the trial French spoke with Koenig, who mentioned
that he knew and had had contact prior to trial with Juror 79, a
biologist working for the federal government. Id. at 24-25. On
the basis of this information, defendants moved for a new trial,
claiming that Juror 79 had concealed a familiarity with Koenig to
their detriment.
The district court deemed this report enough to warrant
further inquiry in the form of hearing directly from Koenig. After
doing so at an evidentiary hearing at which Koenig testified, the
district court found as fact that Koenig and Juror 79 spoke to one
another on the phone for five to ten minutes sometime in the year
prior to trial about a project Koenig was managing near Acadia
National Park. Id. at 34. The two had never met before trial,
nor was there any probative evidence of any other direct contact
between the two prior to trial. Id.
Having so found, the district court concluded that no
further investigation was required. In so doing, the district
court expressed concern that defendants, who had unrestricted
access to their listed witness (Koenig) and who knew both Koenig's
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job and the job of Juror 79, did not explore the issue (with Koenig
himself, perhaps?) prior to trial. Id. at 55. The district court
also expressed much concern about the effect on Juror 79 and on
other prospective jurors of calling Juror 79 in to be examined on
why he did not say that he knew Koenig when the evidence made the
answer reasonably obvious. Id. at 55-58. On this record, we think
there is certainly some merit to this reasoning, but we need not
decide if Russell waived any concern about Juror 79 because, even
setting aside the possibility that defense counsel were
sandbagging, the claim would fail.
As we explained in connection with discussing Juror 86,
once a defendant makes a colorable claim of juror bias, the
district court has a duty to investigate. See Zimny, 846 F.3d at
464. Though a defendant need only present a "colorable" claim to
trigger an investigation, he or she nonetheless retains the burden
to prove juror bias by a preponderance of the evidence based on
that investigation. See Sampson, 724 F.3d at 166. Here, in
response to an initially colorable claim, the district court
brought in Koenig for questioning, but saw no reason to go further
and bring in Juror 79 after hearing Koenig's testimony. For the
following reasons, we find no reason to deem that decision to be
an abuse of discretion.
First, the limited nature of Koenig's contact with
Juror 79 renders speculative any claim that Juror 79 would have
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recognized Koenig's name when read out of context and
mispronounced. Koenig was one of presumably many individuals who
had occasion to be in contact with Juror 79, a government employee.
The contact itself was isolated and lacked any attributes that
would make it more memorable than any of the many other similar
calls and inquiries Juror 79 likely had reason to conduct in his
professional life. Importantly, and unlike the situation with
Juror 86, there is no reason to think that Juror 79 had any motive
to withhold information in response to the question posed. In
other words, if he recalled the brief, inconsequential call with
Koenig, he had no obvious reason not to say so. Before the district
court, defense counsel actually speculated that Juror 79 somehow
knew at the time of voir dire that forfeiture of the land was a
possible result of conviction, so he lied to be sure he could serve
on the jury to participate in getting the environmentally valuable
land for the public. But Russell has abandoned this position on
appeal. And it would fail in any event; the improbable product of
rank speculation is no basis for a finding of juror bias.
Relatedly, the information lost to counsel -- that
Koenig and Juror 79 spoke on the phone once for five to ten minutes
-- was at best barely material. So we have here several very
likely explanations for the lack of a response by Juror 79 (he
never knew, or forgot Koenig's name, or did not recognize it as
mispronounced), no plausible reason to lie, and marginal
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materiality at best. On such a record, having heard testimony
from Koenig, the district court did not abuse its discretion in
deciding to deny the motion without additional investigation.
IV.
Because we are vacating and remanding for an evidentiary
hearing concerning the possible bias of Juror 86, we could defer
review of the drug quantity issue, and only reach it if it becomes
necessary following that hearing. However, we find the matter to
be straightforward, and resolving it now may provide efficiencies
down the road.
In drug conspiracy cases, the sentencing guidelines are
largely driven by the quantity of drugs involved in the conspiracy.
See U.S.S.G. § 2D1.1 (sentencing table). In cases in which
marijuana plants are seized, the quantity is determined either by
the actual usable weight of the marijuana or, if that is not
available, by assigning a weight of 100 grams per plant recovered.
See id. (background).
Although the government discovered and could count the
number of plants growing in 2009, the government did not have
direct evidence of the number of plants grown during the other
three years relevant to sentencing; instead, it relied upon the
amount of Pro-Mix fertilizer purchased as a proxy for the number
of marijuana plants grown. In a nutshell, a supplier's business
records showed how much Pro-Mix fertilizer the supplier sold to
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French and his associates over a four-year period, and government
witnesses in turn testified as to how much Pro-Mix was used on
each basket of marijuana (1/2 to 1-1/2 bags) and how many plants
were in each basket (three to six plants). The PSR, and then the
district court, assumed favorably to defendants that 1-1/2 bags
were used for each basket and each basket contained only three
plants. The district court also put to one side the number of
plants discovered in 2009, which greatly exceeded the number of
plants that one would expect using those conservative assumptions
unless one posited that much of the Pro-Mix bought in prior years
was not used until 2009.
This doubly conservative approach correlated the number
of plants to the amount of fertilizer, resulting in a finding of
9,180 plants, which, using the 100 gram-per-plant formula, yielded
a drug quantity calculation of 918 kilograms. Sentencing Order on
Drug Quantity at 22, United States v. French, No. 12-cr-00160-JAW
(D. Me. Apr. 12, 2016), ECF No. 647 [hereinafter "Sentencing Order
on Drug Quantity"]. This in turn led to the calculation of a base
offense level of 28 for both Russell and French. Id. at 23.
Ultimately, the district court sentenced Russell to 151 months'
imprisonment and French to 175 months' imprisonment. Transcript
of Sentencing Proceedings at 135, 139.
Russell and French argued that this methodology was
speculative, proposing instead to use a methodology based on the
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amount of money the migrant workers involved in harvesting the
plants sent home. In subsequent sentencing memoranda, French urged
the court to use the amount of baskets found at the grow sites as
a proxy for marijuana plants.
We review drug quantity calculations for clear error,
and these calculations "need not be precise to the point of
pedantry. A reasoned estimate based on historical data will
suffice." United States v. Bernier, 660 F.3d 543, 546 (1st Cir.
2011) (citations and internal quotation marks omitted). The
district court reviewed the evidence and found that the testimony
of the seller of the Pro-Mix, as well as that of co-conspirators,
established the connection of the Pro-Mix to the operation.
Sentencing Order on Drug Quantity at 17. It also found that there
was no evidence in the record as to any other use for the Pro-Mix
beyond cultivating marijuana. Id. Further, it noted that the
basket methodology presumed that no reuse of baskets occurred, but
the record did not rule out this possibility. Id. at 24. Based
on this reasoning, the district court expressly found that the
Pro-Mix method allowed for the "reasoned estimate" required by
Bernier. Id. at 15-16. And at the sentencing hearing, the
district court stated that "among the alternatives that have been
proposed, [the Pro-Mix method] is the most accurate of them."
Transcript of Sentencing Proceedings at 46.
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Given the district court's cogent reasoning and
engagement with the evidence on this issue, as well as its
willingness to indulge several defendant-friendly assumptions, we
cannot conclude that the use of the Pro-Mix methodology was clearly
erroneous. Accordingly, the drug quantity calculation provides no
basis to vacate the defendants' sentences.
V.
In addition to the juror-bias challenges and the drug
quantity issue, Russell raises three additional challenges on
appeal. As we noted above, since we are vacating and remanding
the matter for an evidentiary hearing, we could simply decline to
resolve these challenges at present. But, as with the drug
quantity issue, we find Russell's further challenges to be easily
addressed, so we resolve them now for efficiency's sake.
A.
During jury selection, French's counsel objected to the
government's peremptory strike of the only African-American
prospective juror. See Batson v. Kentucky, 476 U.S. 79, 96-98
(1986). The government in response offered three race-neutral
reasons for its strike, including most notably the fact that the
juror had been sleeping from time to time during the selection
process. Counsel for French then withdrew the objection. Russell
did not make a Batson challenge of his own, nor did his counsel
protest French's counsel's withdrawal of the challenge. Now on
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appeal, Russell concedes that this issue was unpreserved and is
reviewable for plain error only. By contrast, the government urges
us to find waiver because French's counsel -- the attorney who
actually made the objection -- explicitly withdrew it.
We need not decide whether Russell waived or merely
forfeited the issue because, even if only forfeited, the claim
would fail on plain error review. Neither during jury selection
nor on appeal has Russell suggested that the prospective juror did
not doze off. Nor can Russell reasonably suggest that a preference
for jurors who pay attention is unreasonable. We therefore see no
error, let alone a clear or obvious one, in finding this to be a
race-neutral explanation for the strike sufficient to forestall a
Batson challenge.
B.
Russell also contends that the district court erred in
admitting evidence concerning his prior convictions for felony
health-care fraud. Russell argued prior to trial that the
convictions should not come in, but he did not persuade the
district court to exclude them. He then elected to testify to the
convictions on direct examination, presumably in hopes of
preemptively tempering the impact those convictions would have
upon the jury's perception of his credibility.
Because he chose to testify to the convictions on direct
examination, Ohler v. United States dictates that he waived the
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claim on appeal. 529 U.S. 753, 760 (2000) ("[W]e conclude that a
defendant who preemptively introduces evidence of a prior
conviction on direct examination may not on appeal claim that the
admission of such evidence was error."). Undeterred, Russell
contends that Justice Souter's dissent in Ohler was the more
persuasive opinion. Whatever the merits of that position, we are
bound by the majority opinion, and thus agree with the government
that Russell waived any challenge to the introduction of his prior
convictions by testifying to them on direct examination.
C.
Finally, Russell argues that several statements the
prosecutor made during closing argument amounted to misconduct
necessitating a new trial. We are unconvinced. Russell concedes
that he did not object contemporaneously to the statements and
that review is thus for plain error only. When faced with a claim
that a prosecutor's comments during a closing statement were
improper, we vacate a conviction only if the remarks "so poisoned
the well that the trial's outcome was likely affected." United
States v. Kasenge, 660 F.3d 537, 542 (1st Cir. 2011) (quoting
United States v. Henderson, 320 F.3d 92, 107 (1st Cir. 2003)). In
assessing this question, we consider the severity of the conduct
and whether it was deliberate, the context, the presence of
curative instructions and their likely effect, and the strength of
the prosecution's case. Id.
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We see no plain error meriting vacatur here. Two of
Russell's concerns go to the notion that the prosecutor unfairly
disparaged the defendants and various witnesses by suggesting that
Russell and French's testimony was not credible given their
motivations and the other evidence, and by describing various
witnesses as "liars" and "scoundrels." But commenting on the
credibility of witnesses is usually appropriate in a closing
argument. As to the suggestion of inflammatory language, the
context of the remarks makes clear that the government was
acknowledging that its own witnesses were imperfect.
Russell also suggests that the prosecutor made several
factual misrepresentations to the jury -- specifically, that
Russell had told one worker to stay away from Maine after law
enforcement became involved and that the co-conspirators burned
down their camp. He further contends that the prosecutor told the
jury that Pro-Mix could not be sold, contrary to the evidence. We
see none of these statements as sufficient to cast the conviction
in doubt. As to the first two, assuming arguendo that these
comments slightly overstated the evidence, they were isolated and
minor comments in the context of a much larger web of evidence
pointing to Russell's guilt. As to the third, Russell simply
misconstrues the prosecutor's statement. The prosecutor was not
saying that Pro-Mix could never be resold. Rather, he was casting
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doubt on the far-fetched theory that defendants purchased large
amounts of Pro-Mix to pay off a local gang.
In any event, the district court instructed the jury
that closing statements were not evidence, and we have no reason
to doubt the jury's ability to follow that instruction. See United
States v. Spencer, 873 F.3d 1, 16 (1st Cir. 2017) (noting the
court's "long-standing presumption that jurors follow
instructions"). Furthermore, the case against Russell was strong,
consisting of both physical evidence and the testimony of multiple
witnesses directly implicating him in the conspiracy. In short,
we see no clear error that could have prejudiced Russell.
VI. Conclusion
We vacate the order denying the motion for a new trial
based on the response of Juror 86 to question 3 on the jury
questionnaire, and remand for further proceedings on that motion.
We otherwise reject all of the defendants' challenges to their
convictions and sentences.
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