BANGOR, Maine — A federal judge will consider March 17 whether three men convicted on drug charges in connection with the Township 37 marijuana plantation should be granted new trials.
Malcolm French 53, of Enfield, Rodney Russell, 51, of South Thomaston and Kendall Chase, 58, of Bradford were found guilty on a variety of charges in connection with the pot farm on Jan. 24, 2014, following a 10-day jury trial.
Attorneys for all three men have filed separate motions seeking new trials for different reasons, according to information posted on the court’s electronic filing system.
Chase’s attorney is arguing the federal prosecutor withheld information about the only witness who could link Chase to the plantation.
A second motion, which has not been made public but has been filed by French’s attorney, appears to allege juror misconduct. Although the motion is not public, the judge issued an order releasing juror questionnaires to attorneys that referred to the motion and its content.
A third motion argues jurors should not have been told about Russell’s prior convictions, some of which were overturned, in an unrelated case.
Corporation Haynes Timberland Inc., which owned the land where the pot was found, also was found guilty last year but is not seeking a retrial.
All three men were found guilty of conspiring to produce more than 1,000 marijuana plants between 2006 and 2009 in what the Maine Drug Enforcement Agency has called “the state’s most sophisticated operation,” which used undocumented workers to tend the plants. French and Russell were found guilty of manufacturing more than 1,000 marijuana plants in 2009. Chase was found not guilty on the manufacturing charge.
Winston McTague, 49, of Newport testified at the trial that Chase was involved from 2006 through 2008 but had a falling out with French before 2009.
McTague’s testimony is the subject of the most recent motion for a new trial filed Wednesday by Kendall’s attorney, Leonard Sharon of Auburn. Sharon claimed in the seven-page motion the U.S. attorney’s office failed to share concerns McTague’s wife, Kelly McTague, expressed to prosecutors before her husband testified to a federal grand jury some time before Sept. 14, 2012, when the indictment was handed up. The exact date he testified was not included in the motion.
Kelly McTague and her husband’s attorney, Matthew Erickson of Brewer, met with Assistant U.S. Attorney Joel Casey, MDEA Agent Jonathan Richards, and, perhaps others, the complaint said.
“Mrs. McTague expressed to them a number of concerns about Winston’s mental capabilities,” the motion said. “Her focus was to make it clear to the government that Winston’s traumatic brain injury from the motorcycle accident in 2007 left him in a very compromised mental position and the stress from testifying is something that she feared would be detrimental for his health.
“Mrs. McTague intended to educate the government that the stress from the trial would be too much for Winston,” the motion continued. “She informed them that Winston has a tendency to exaggerate things. … She described how Mr. McTague saw things in his mind which he described as ‘movies in his head’ and was ‘very paranoid.’ She stated that the government listened to her concerns but was unwilling to make any compromises and also asked no specific questions in response to her concerns.”
Not having this information prevented the defense from impeaching McTague’s statements, Sharon, who did not represent Chase at the trial, argued.
“Mr. McTague was the witness for the government who outlined for the jury exactly what Mr. Chase was alleged to have been involved with and the extent to his involvement,” the motion said. “Absent Mr. McTague’s testimony, the evidence linking Mr. Chase to the conspiracy is weak at best.”
Sharon said in the motion he learned of the meeting from his client’s wife, Jan Chase, after Kelly McTague told her about it nine months their husbands were convicted.
In May, Judge Woodcock denied a motion for Chase’s acquittal made by his trial attorney, Jeffrey Silverstein of Bangor. Silverstein argued that there was “no reliable evidence that Chase possessed any of the marijuana or conspired to possess with the intent to distribute. … There are no witnesses who identify Chase as being a supplier, seller, middle-man or even one who communicated where marijuana could be obtained for sale or resale.”
The U.S. attorney’s office will oppose the motion for a new trial, according to Assistant U.S. Attorney Todd Lowell.
A second pending motion for a new trial was filed in October but has not been made public. Neither had the prosecutor’s response.
The only mention of the motion in court documents is a one-page order signed by Woodcock, dated Oct. 7.
French’s attorney, Walter McKee of Augusta, “alleged misconduct on the part of one of the jurors,” the order stated. It also said Russell had joined the motion for a new trial.
Attorneys and prosecutors involved in the case declined to confirm the motion existed and refused to discuss its content.
Juror misconduct runs the gamut, from not revealing during jury selection knowledge of the alleged crimes to a juror not fully explaining his or her relationship to a defendant to possible bribery attempts.
Information about the exact nature of the alleged misconduct most likely will not be made public before the hearing.
A third motion seeking a new trial was filed by Russell’s attorney, William Maddox of Rockport. During the trial, the jury was told Russell had been convicted of four counts of making a false statement in connection with a health care benefit program. After the verdict, two of those convictions were reversed and two were upheld, according to court documents.
Maddox said in the motion that telling jurors about Russell’s convictions prejudiced jurors against him.
Prosecutor Casey disagreed.
“If a re-trial were granted, the only difference in the presentation of the evidence would be the introduction of two false statement convictions, as opposed to four,” he said.
French, Chase and Russell are being held without bail awaiting sentencing.