904 F.3d 111
1st Cir.2018Background
- French owned large tracts of Maine timberland; police discovered extensive marijuana grow sites on Township 37; French and Russell were indicted and convicted on multiple drug and related counts and sentenced to lengthy terms.
- Prospective jurors completed written questionnaires and underwent oral voir dire; Juror 86 wrote “n/a” in response to a question asking whether the juror or a close family member had been involved in any court matter; she did not disclose that her son had multiple drug-related convictions.
- After sentencing defendants learned (via a jailhouse report and investigation) that Juror 86’s son had been prosecuted repeatedly for drug offenses and that Juror 86 had paid his legal fees and visited him in jail. Defendants moved for a new trial alleging juror dishonesty and bias.
- The district court denied the new-trial motion, finding (1) the questionnaire response ambiguous or mistaken rather than dishonest, (2) defense counsel’s failure to follow up at voir dire foreclosed relief, and (3) any error was harmless because the government’s case was strong.
- Defendants also moved based on alleged nondisclosure by Juror 79 (who allegedly had a brief prior phone contact with a government witness), disputed drug-quantity calculation at sentencing based on Pro-Mix fertilizer purchases, and several other trial complaints (Batson, admission of prior convictions, prosecutor remarks).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror 86: New trial for juror dishonesty/bias | Govt: No substantial showing of dishonesty or cause to strike; any ambiguity/mistake insufficient | Defendants: Juror knowingly omitted material info about her son; that is a colorable claim requiring investigation and, if biased, requires new trial | Vacated denial and remanded: defendants presented a "colorable or plausible" claim; district court required to investigate further; presence of a biased juror is structural error requiring vacatur if proven |
| Juror 79: Nondisclosure of acquaintance with witness (Russell only) | Govt: Contact was brief, inconsequential; no motive to lie; not material | Russell: Juror concealed familiarity with witness Koenig, warranting new trial | Affirmed: district court reasonably investigated (heard witness), found contact minimal and not material; no abuse of discretion to deny further inquiry |
| Drug-quantity for sentencing (use of Pro-Mix to estimate plants) | Defendants: Pro-Mix proxy speculative; propose alternate proxies (money sent home, baskets) | Government: Supplier records + cooperator testimony connect Pro-Mix purchases to grows; provides reasoned estimate | Affirmed: district court's reasoned estimate using Pro-Mix not clearly erroneous; conservative assumptions adopted; sentence stands |
| Miscellaneous (Batson, admission of prior convictions, prosecutorial comments) | Russell/French: Batson challenge to peremptory strike; prior convictions should've been excluded; prosecutor committed misconduct at closing | Government: Strike was race-neutral (juror dozed); Russell waived challenge to convictions by testifying; comments not so prejudicial and jury instructed | Affirmed: Batson plain-error review fails; Ohler bars appeal of admitted prior convictions; closing remarks not plain error given context and jury instruction |
Key Cases Cited
- McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (establishes test: dishonest answer + cause to strike required for new trial)
- Sampson v. United States, 724 F.3d 150 (1st Cir.) (courts must consider juror's reason for dishonesty; factors for assessing bias)
- United States v. Zimny, 846 F.3d 458 (1st Cir.) (defendant need only make "colorable or plausible" showing to trigger district-court duty to investigate)
- Bernier, 660 F.3d 543 (1st Cir.) (drug-quantity estimates need only be reasoned estimates based on historical data)
- Ohler v. United States, 529 U.S. 753 (defendant who introduces prior convictions on direct examination waives appellate challenge to their admission)
- Batson v. Kentucky, 476 U.S. 79 (peremptory strike challenge framework)
- Arizona v. Fulminante, 499 U.S. 279 (structural-error framework)
- Neder v. United States, 527 U.S. 1 (distinguishing structural from trial errors)
- Tumey v. Ohio, 273 U.S. 510 (trial before biased judge is structural error)
- Turner v. Louisiana, 379 U.S. 466 (trial before a jury with fatal impartiality compromise is structural error)
- Morgan v. Illinois, 504 U.S. 719 (bias of a juror in capital sentencing mandates reversal)
- Wilder v. United States, 806 F.3d 653 (1st Cir.) (distinguishes §2255 actual-prejudice standard from direct-appeal review)