United States v. French

UNITED STATES OF AMERICA v. MALCOLM A. FRENCH

No. 1:12-cr-00160-JAW-1

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

May 6, 2021

ORDER ON MOTION FOR COMPASSIONATE RELEASE

A defendant serving a one hundred seventy-five month sentence for orchestrating a large-scale marijuana manufacturing and distribution operation, which involved harboring illegal aliens, was released on bail pending appeal, pursuant to 18 U.S.C. § 3143(b). Following an unsuccessful appeal, and while still out on bail, he moved for compassionate release to home confinement and a modification of sentence under 18 U.S.C. § 3582(c)(1)(A). The Court dismissed the motion orally at a telephonic conference of counsel and now memorializes its ruling in a written order.

The Court concludes the defendant's health does not pose an extraordinary and compelling reason warranting a sentence reduction, and the seriousness of his offenses, the relatively short time he has served, and the need for the sentence served to fulfill the sentence imposed preclude his release. The Court dismisses the motion without prejudice.

I. PROCEDURAL BACKGROUND

A. Trial, Verdict and Sentence

On January 24, 2014, after a twelve-day trial, a jury found Malcolm French guilty on eight counts, including manufacturing and conspiracy to manufacture marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) and 846, conspiracy to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846, maintaining a drug involved place, in violation of 21 U.S.C. §§ 856(a)(1) and (2), and harboring illegal aliens, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (2). Min. Entry (ECF No. 308); Jury Verdict Form (ECF No. 311). On April 21, 2016, after several unsuccessful motions for new trial, Mr. French was sentenced to one hundred seventy-five months imprisonment on five counts and sixty months on three counts all to be served concurrently, five years of supervised release on two counts and three years on six counts all to be served concurrently, an $800 special assessment, and $100,000 fine. Min. Entry (ECF No. 655); J. (ECF No. 659).

B. Motion for New Trial and First Appeal

On April 28, 2016, Mr. French moved for a new trial, claiming that a juror failed to respond truthfully to her juror questionnaire and to a material voir dire question. Def.'s Malcolm French's Mot. for New Trial Pursuant to F.R. Crim. P. 33 (ECF No. 674). On November 16, 2016, the Court denied the motion for new trial. Order Denying Mot. for New Trial (ECF No. 734). The next day, Mr. French filed a notice of appeal. Notice of Appeal (ECF No. 740).

On September 17, 2018, the Court of Appeals for the First Circuit affirmed the Court in part but concluded that the Court's investigation concerning the answers given by one of the jurors on the jury questionnaire was inadequate. United States v. French, 904 F.3d 111 (1st Cir. 2018). The First Circuit vacated the Court's order denying the motion for a new trial and remanded for further proceedings on that motion. Id. at 125. The Court received the First Circuit's mandate on October 10, 2018. Mandate (ECF No. 790).

C. Renewed Motion for New Trial, Second Appeal and Release on Bail Pending Appeal

On June 7, 2019, on remand from the First Circuit and after holding a post-conviction evidentiary hearing, the Court denied Mr. French's motion for new trial. Order on Mot. for New Trial on Remand (ECF No. 844). On June 12, 2019, Mr. French filed a notice of appeal. Notice of Appeal (ECF No. 845).

While that appeal was pending, Mr. French filed an emergency motion for temporary bail with the First Circuit. Emergency Mot. for Temporary Bail, United States v. French, No. 19-1632 (1st Cir. Mar. 24, 2020). On March 26, 2020, the First Circuit denied Mr. French's motion without prejudice but noted that if Mr. French filed a motion with the district court, the judge should "conduct any necessary proceedings on an expedited basis." Order of Ct. at 1 (ECF No. 855). The First Circuit further observed that Mr. French "has raised a substantial question within the meaning of 18 U.S.C. § 3143(b)(1)(B)." Id. The First Circuit also noted that the Government had not relied on "any argument that defendant is a danger or a risk of flight." Id. The appellate court left "to the district court the question of whetherdefendant can demonstrate the existence of exceptional reasons why his continued detention would not be appropriate." Id. (citing 18 U.S.C. § 3145(c)). The First Circuit directed the district court to make "findings that account for defendant's as-yet-undisputed health conditions, relevant guidance from the Centers for Disease Control, and the protocols of the Bureau of Prisons." Id.

On March 26, 2020, Mr. French filed an emergency motion for temporary bail pending appeal with this Court. Emergency Mot. for Temporary Bail (ECF No. 856). On March 27, 2020, the Court issued an interim order, resolving some, but not all the issues in the First Circuit order. Interim Order on Emergency Mot. for Release (ECF No. 859). On March 31, 2020, the Court made factual findings in line with the First Circuit's guidance and granted the motion, releasing Mr. French on bail pending his appeal. Order on Emergency Mot. for Release (ECF No. 869).

On October 7, 2020, the First Circuit ruled on Mr. French's appeal, affirming this Court's denial of his motion. United States v. French, 977 F.3d 114 (1st Cir. 2020). This Court received the First Circuit's mandate on November 27, 2020. Mandate (ECF No. 881). On March 6, 2021, Mr. French filed a petition for writ of certiorari with the United States Supreme Court, which the Supreme Court denied on May 3, 2021. French v. United States, No. 20-1256, 2021 WL 1725207 (Mem) (S. Ct. May 3, 2021).

D. Motion to Revoke Bail

On November 16, 2020, after the First Circuit's decision, the Government moved to revoke Mr. French's bail, reasoning that he no longer had an appeal pendingthat raised a substantial question of law or fact likely to result in reversal or an order for a new trial, and requested expedited consideration. Gov't's Mot. to Revoke Defs.' Bail Pending Appeal and Req. for Expedited Consideration (ECF No. 877). On December 14, 2020, the Court dismissed the Government's request that the Court expedite its consideration of the Government's motion to revoke bail pending appeal, concluding that it was wiser to first resolve Mr. French's motion for compassionate release. Order on Gov't's Mot. for Expedited Order (ECF No. 894).

On April 30, 2021, the Court issued an oral order during a telephonic conference of counsel, granting the Government's motion to revoke bail and ordering Mr. French to surrender for service of sentence at the institution designated by the BOP by 2:00 p.m. on May 5, 2021. Oral Order (ECF No. 930). At the conference, the Court indicated that it would issue a written order setting forth its reasoning. The Court addresses the motion to revoke bail in a separate written order.

E. Motion for Compassionate Release

On December 7, 2020, Mr. French filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). French's Mot. for Compassionate Release (ECF No. 883) (Def.'s Mot.). The following day, Mr. French filed a declaration from his treating doctor regarding fluid buildup in his right lung. Decl. of Andrew Dixon (ECF No. 886). On December 17, 2020, the Government responded in opposition. Gov't's Obj. to Def.'s Mot. for Compassionate Release (ECF No. 898) (Gov't's Opp'n). Mr. French replied on December 21, 2020. French's Reply re: Mot. for Compassionate Release (ECF No. 900) (Def.'s Reply). The next day, Mr. French filed a seconddeclaration from his treating doctor concerning his health. Second Decl. of Andrew Dixon (ECF No. 902). Over the next several weeks, Mr. French's counsel filed two letters, updating the Court on a pleural biopsy that was scheduled for January 19, 2021. Letter from Att'y Jamesa J. Drake to Hon. John A. Woodcock, Jr. (Jan. 8, 2021) (ECF No. 905); Letter from Att'y Jamesa J. Drake to Hon. John A. Woodcock, Jr. (Jan. 19, 2021) (ECF No. 906).

On February 16, 2021, Mr. French's counsel wrote to the Court, attaching the biopsy results from Mr. French's January 19, 2021 biopsy, and explained that "the sample tested for cancer was found to be 'benign.'" Letter from Att'y Thomas F. Hallett to Hon. John A. Woodcock, Jr. (Feb. 16, 2021) (ECF No. 909). Mr. French's counsel stated that the diagnosis is "Chronic Fibrosing Pleuritis" and that he "is in the process of trying to schedule a telephone conference with pulmonary specialist Dr. Dixon to review Mr. French's current medical condition and get a prognosis moving forward." Id. On February 23, 2021, Mr. French's counsel provided an update, informing the Court that an x-ray taken February 17, 2021 showed that Mr. French "developed another pocket of fluid in the right lung pleural cavity" and was prescribed a two-week course of prednisone, but prednisone was not previously effective in treating his condition. Letter from Att'y Thomas F. Hallett to Hon. John A. Woodcock, Jr. (Feb. 23, 2021) (ECF No. 910).

On March 4, 2021, the Court held a telephonic conference of counsel to discuss the status of Mr. French's health conditions, and the Court asked the parties to file a proposed order directing the BOP to perform a medical review of Mr. French's case.The Court's concern was whether the BOP could adequately care for Mr. French if he returned to BOP custody. Min. Entry (ECF No. 915). On March 16, 2021, following another conference of counsel, the Government filed a motion requesting an order directing the BOP to review Mr. French's medical records and report back to the Court. Gov't's Mot. for Order Directing BOP Record Review (ECF No. 918). On March 17, 2021, the Court granted the Government's motion and ordered Dr. Diane Sommer, Regional Medical Director for the BOP, to review Mr. French's medical records and answer several questions about his chronic...