977 F.3d 114
1st Cir.2020Background
- Defendants Malcolm French and Rodney Russell were convicted after a jury trial of crimes arising from a large-scale marijuana cultivation operation on French’s property.
- After conviction, defense counsel learned that Juror 86 had an older son with multiple drug-related convictions and that she had visited him in jail and paid his legal fees.
- Juror 86 did not disclose those family court contacts on the written jury questionnaire and did not volunteer them during oral voir dire.
- The district court initially denied a new-trial motion; this court vacated and remanded for further inquiry, finding a colorable claim of juror dishonesty.
- On remand the district court held a formal evidentiary hearing, appointed counsel for Juror 86, permitted counsel to examine and cross-examine her, found she had not honestly answered material voir dire questions but concluded a reasonable judge would not have struck her for cause, and again denied a new trial.
- Defendants appealed again, challenging the court’s chosen investigative procedure (appointment of counsel for the juror; using counsel rather than judge to question) and the denial of a new trial under the McDonough standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion in the procedure used to investigate juror bias (appointment of counsel for juror and counsel-led questioning) | The court’s procedure was reasonable and protective of the juror; appointment of counsel is permissible; counsel questioning is appropriate | Procedure was improper: appointing counsel for juror and not allowing judge to question biased the inquiry and hindered defendants’ ability to probe | No abuse of discretion: appointment of counsel and counsel-led direct/cross-examination were within the court’s discretion and sufficiently probative |
| Whether Juror 86’s failure to answer honestly on voir dire was "material" under McDonough | Juror 86’s non-disclosure was material because it concerned close family members’ drug convictions pertinent to a marijuana prosecution | Same: but emphasize context that juror lacked detailed knowledge and did not exhibit bias | Failure to answer was material, but materiality alone not dispositive; requires next-step inquiry (would truthful answer have provided cause) |
| Whether a truthful response would have provided a valid basis for a challenge for cause (i.e., juror was unfit/impartial) | Defendants: truthful disclosure of sons’ drug histories would have shown bias and provided cause to strike juror | Government: family incidents were factually dissimilar to large-scale operation, juror was calm, unemotional, and not personally implicated; no basis for cause | Held for government: on totality, a reasonable judge would not conclude Juror 86 lacked capacity or will to decide impartially; no reversible bias shown |
| Whether memory lapses or passage of time warranted shifting evidentiary burden to government | Defendants: passage of years impaired investigation; any memory lapses should count against government | Government: evidence at hearing was adequate; most concerning motives were ruled out; defendants still bear preponderance burden | Court rejected automatic burden shift; no prejudice shown from delay; defendants failed to meet burden of proving disqualifying bias |
Key Cases Cited
- McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (establishes two-part test for new trial when a juror lied on voir dire)
- Sampson v. United States, 724 F.3d 150 (1st Cir. 2013) (factors for determining whether nondisclosure warrants striking juror for cause)
- Paniagua-Ramos v. United States, 251 F.3d 242 (1st Cir. 2001) (abuse-of-discretion standard for district-court inquiry into juror taint)
- Boylan v. United States, 898 F.2d 230 (1st Cir. 1990) (district court must fashion and implement suitable framework to investigate juror misconduct)
- Zimny v. United States, 846 F.3d 458 (1st Cir. 2017) (discusses scope of inquiry into juror bias)
- Bristol-Mártir v. United States, 570 F.3d 29 (1st Cir. 2009) (court abused discretion where jurors were not questioned at all about taint)
- Bradshaw v. United States, 281 F.3d 278 (1st Cir. 2002) (district court has discretion to choose investigation methods)
- Rodriguez v. United States, 675 F.3d 48 (1st Cir. 2012) (case-specific nature of inquiry dictates level and manner of inquiry)