United States Court of Appeals
                        For the First Circuit


Nos. 19-1605, 19-1632

                    UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

              MALCOLM A. 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

                        Lynch, Kayatta, Barron,
                            Circuit Judges.


     Jamesa J. Drake, Thomas F. Hallett, Hallett, Whipple &
Weyrens, PA, and Drake Law, LLC on brief for appellant Malcolm
French.
     William S. Maddox on brief for appellant Rodney Russell.
     Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.


                            October 7, 2020
               KAYATTA, Circuit Judge.                Malcolm French and Rodney

Russell sought a new trial after a jury found them guilty of

charges arising out of a large-scale marijuana-farming operation.

They argued that one juror had lied in filling out the written

questionnaire given to prospective jurors prior to trial. Agreeing

in part, we vacated the district court's order denying their

request    for    a     new    trial   and     remanded     the   case     for    further

proceedings to investigate the alleged juror misconduct.                          United

States    v.    French,       

,      114,   125   (1st     Cir.   2018).

Following further proceedings on remand, the district court again

denied the motion for a new trial.                 French and Russell now appeal

a   second      time,    claiming      that    the    district     court    improperly

exercised its discretion in fashioning a procedure to investigate

the defendants' claims and in concluding that a new trial was not

warranted.       For the following reasons, we reject the appeal and

affirm    the    district      court's     order     dismissing     the    defendants'

motion for a new trial.

                                              I.

                                              A.

               French    and    Russell       were    charged     after    substantial

marijuana-cultivation sites were found on French's property in

September 2009.         As we recounted in the defendants' first appeal,

French controlled some 80,0000 acres of land in Washington County,

Maine, and employed Russell as an office manager for his logging


                                           - 2 -
business.     

.              After an investigation by

Maine law enforcement, a grand jury indicted both defendants 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.

ensued.         Numerous eyewitnesses

testified as to French and Russell's involvement in marijuana

production,          while     both    defendants       testified       and      denied

culpability.         After the jury convicted French and Russell on all

counts,     the      district      court   sentenced    French     to   175 months'

imprisonment and Russell to 151 months' imprisonment.

defense counsel learned that

Juror 86 -- who sat on the jury in French and Russell's trial --

has a son who was a small-time marijuana dealer.

Upon receipt of this information, French's counsel investigated

and   learned     that       the   older   of   Juror 86's   two    sons      had   been

convicted of marijuana and other drug-related offenses between

2002 and 2014.        Counsel also learned that Juror 86 had visited her

older son in jail on one occasion and had paid legal fees arising

out of his offenses on several others.

             Juror 86 had not disclosed this information about her

son's involvement in the criminal legal system on a questionnaire

that the Clerk's Office distributed to her when she was called for




                                           - 3 -
jury duty in October 2013, prior to jury selection.       Question 3 of

the questionnaire read as follows:

           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]

      Juror 86 had written only "n/a"

after part (a) and left parts (b) and (c) blank.        She also had not

completed the second page of the questionnaire, which contained

six additional prompts on other matters and directed prospective

jurors to sign and declare under penalty of perjury that they had

answered all the questions truthfully and completely.

86 supplied the information about her son's

criminal   history   in   response   to   several   questions    posed   to

prospective jurors by the magistrate judge during oral voir dire

in January 2014, including the following question:

                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   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


                                 - 4 -
          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?

          In first moving for a new trial in the spring of 2016,

the   defendants   argued   that    Juror 86's    responses   to   the

questionnaire and her lack of response to the oral voir dire

questions were dishonest.

    They maintained that

if Juror 86 had answered these questions honestly, the court likely

would have stricken her for cause.       In addition to seeking a new

trial, the defendants requested an evidentiary hearing to question

Juror 86 about her responses.

   The district court

denied the defendants' motion for a new trial in November of 2016,




      1 Juror 86 also did not respond to another question posed by
the magistrate judge:
          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?

.



                                 - 5 -
finding    Juror 86's    answers,    or    lack   thereof,     insufficient    to

compel a new trial or an evidentiary hearing. Order Denying Motion

for New Trial at 24–25, 43–44, United States v. French, No. 12-

cr-00160-JAW (D. Me. Nov. 16, 2016), ECF No. 734.

             On appeal, we found that the allegations of Juror 86's

bias presented a "colorable or plausible" claim of the type of

juror misconduct that might require a new trial.               

.     However, because the record as it then stood did not

indicate     why    Juror 86   answered      as   she   did,    we    could   not

definitively determine whether she was unduly biased.

We therefore vacated the district court's denial of the defendants'

motion and remanded for further proceedings on the motion for a

new trial.

                                      B.

             On    remand,   the   district   court     held   an    evidentiary

hearing to resolve the two questions on which the new-trial motion

depends:     "(1) did Juror 86 fail to honestly answer a material

question; and (2) would a correct response have provided a basis

for a challenge for cause"?          Prior to the hearing, the district

court twice met with counsel to discuss what procedures to adopt

to investigate the allegations of Juror 86's bias.                   The parties

shared views on issues such as how to approach Juror 86, the

likelihood that she would invoke her Fifth Amendment rights,

whether the Court should appoint counsel to represent her, and


                                     - 6 -
whether the Court or counsel should do the questioning at the

hearing.      Over the defendants' objections, the district court

appointed the Federal Defender for the District of Maine, Attorney

David     Beneman,      to    represent       Juror 86       at     the     evidentiary

hearing.     The district court also decided that, contrary to the

government's preference, it would not ask Juror 86 questions from

the bench during the hearing.             Instead, the district court ruled

that    Attorney Beneman       would    perform       a    direct    examination      of

Juror 86, followed by cross-examination by the government and

counsel     for   the    defendants,      notwithstanding           the     defendants'

argument that they should be allowed to question Juror 86 first

because they had the burden of proof.

             During the evidentiary hearing held on February 1, 2019,

the    parties    stipulated     to    the     relevant      criminal        record   of

Juror 86's older son.         Most notably for our purposes, that record

included:     a 2002 state-court charge for unlawful furnishing of

marijuana (which led to a misdemeanor conviction for unlawful

possession of marijuana); a 2005 state-court charge for unlawful

furnishing of cocaine (which led to a misdemeanor conviction for

possession     of    cocaine);    and     a    2011       state-court       misdemeanor

conviction for unlawful possession of marijuana.                     Counsel further

stipulated that when prospective jurors are contacted by the

Clerk's     Office      and    complete       the     relevant       jury     selection

questionnaires, they do not know whether they are being called for


                                        - 7 -
a civil case or a criminal case.             Several exhibits were admitted,

including copies of three personal checks made out by Juror 86 in

2010 to a lawyer in relation to services provided to her older

son; a record that Juror 86 visited her older son at the Kennebec

County Jail in October 2003; and a petition referencing a juvenile

proceeding in which Juror 86's older son was charged with theft

and forgery in 2001.

             The evidentiary hearing lasted for approximately two and

a half hours.     On direct examination, Juror 86 testified that she

did not recall filling out the questionnaire in the fall of 2013

and that looking at the forms did not refresh her memory. Juror 86

nonetheless agreed that the handwriting was hers.                         Regarding

Question 3(a), which asked her to describe "any court matter in

which you or a close family member were involved," she said that

her answer ("n/a") was correct because it meant "not applicable."

She nevertheless agreed that she had herself gone to court on two

occasions:      once as a witness in a matter concerning her sister's

negligent parenting, and once when she was divorced.                    She further

testified that her current husband had also gone to court for a

divorce   with    a    prior   spouse      and   for   an   operating    under   the

influence charge.        As for her two sons, Juror 86 testified that

her   younger    son   had     been   to   court   on   charges   for     speeding,

possession of tobacco by a minor, and possession of a "small amount

of pot," and she believed that she had accompanied him on some or


                                        - 8 -
all occasions.         Juror 86 also admitted that her older son had gone

to court, that she had visited him at Kennebec County Jail, and

that she had written checks to a lawyer to pay for his legal

services.       However, she indicated that she did not specifically

know why her older son had hired a lawyer or what he was charged

with.

               On     cross-examination      by    defense     counsel,      Juror 86

maintained that she did not include this information about her

family    members'        involvement     with     the     legal    system   on    the

questionnaire because she "did not think it was relevant." Despite

visiting her older son in jail, Juror 86 stated that she had not

known the nature of the charges against him and only learned that

they     had        involved     marijuana        during     conversations         with

Attorney Beneman in advance of the evidentiary hearing.                            She

explained that she "remember[ed] he was pulled over," but that "he

never talked to [her] about it."             When prompted about her presence

at a juvenile proceeding, Juror 86 recalled that she reported one

of her sons to the police after he forged one of her checks and

stole from her in 2001, but that she did not recall what legal

proceedings resulted.

               With    respect    to   the   oral     questions      posed    by    the

magistrate judge as part of the voir dire process exploring matters

"that    would         affect    [potential        jurors']        ability    to     be

impartial," Juror 86 testified on direct examination that she did


                                        - 9 -
not remember answering the question of whether she or a close

family member had had any experiences with controlled substances,

particularly marijuana.   She further stated that she thought that

the question "did not pertain to [her]" because she "stay[s]

neutral" and "do[esn't] form judgments prior to knowing the full

story." She added that her sons' involvement in matters concerning

marijuana would not have affected her ability to be impartial.   As

to the question posed by the magistrate judge of whether anyone on

the jury panel had strong beliefs about the legalization of

marijuana that would interfere with the juror's ability to be fair

and impartial, Juror 86 did not recall responding, but suggested

she would not have responded because she "did not have an opinion

either way" that would have impeded her ability to be impartial.

As to a final question posed by the magistrate judge -- whether

there was anything that would have interfered with the prospective

juror's ability to be a fair and impartial juror in the case --

Juror 86 indicated that she felt that she could be fair and

impartial, and that she still believed that to be the case.

           On cross-examination by the government, Juror 86 denied

that she had sought to hide or provide false information in her

answers to Question 3(a) and the questions posed by the magistrate

judge.   She indicated that she had only a limited knowledge of her

sons' interactions with the legal system and stated that she did

not have a strong desire to be either on or off a jury or any bias


                              - 10 -
or animosity against people accused of drug crimes, including

people accused of growing marijuana.2

            Following the evidentiary hearing, French and Russell

filed renewed motions for a new trial.          The district court denied

the motions.       Despite finding that Juror 86 "failed to honestly

answer a material question on voir dire" by not disclosing numerous

court proceedings involving herself and her close family members,

including    several      involving   controlled     substances,   the   court

concluded that Juror 86 would have been able to separate her

emotions from her duties as a juror and that she would not have

been stricken for cause by a reasonable judge had she honestly

answered the questions posed.           Considering the factors discussed

in Sampson v. United States, 

, 165–66 (1st Cir. 2013),

the court reasoned that:          (1) Juror 86 withheld information about

herself    and   about    close   family   members   --   her   sons   and   her

husband -- which weighed in favor of the defendants; (2) Juror 86

was "unemotional" and "calm," a factor favoring the government;

(3) although most of the charges against Juror 86's sons were

distinct    from    the    charges    against   French    and   Russell,     the


     2  Counsel for French also called Juror 86's husband to
testify and asked whether he was aware that Juror 86's older son
had been arrested for marijuana. He indicated that he was, but
that he could not remember exactly when the arrest took place.
     In addition, French's counsel called Dr. Charles Robinson, a
forensic psychologist and expert in memory, who suggested that
Question 3(a) was of the sort that would normally trigger memories
of earlier interactions with the court system.


                                      - 11 -
similarity     of    the   older   son's    marijuana   trafficking   charge

slightly favored the defendants; (4) the scope and severity of the

inaccuracies slightly favored the government; and (5) no answer

had been found as to "why Juror 86 failed to accurately and

honestly answer Question 3 in October 2013, why she did not reveal

this information during voir dire in January 2014, [or] why she

testified in such a contradictory and confusing manner in February

2019."   All together, the court concluded that "if the Magistrate

Judge and counsel had been made aware of Juror 86's sons' marijuana

convictions, the convictions would not have provided a valid basis

for a challenge for cause."        The court therefore denied the motion

for a new trial, and this second appeal followed.

                                      II.

             "[W]e review claims that a trial court failed to conduct

an appropriate inquiry into allegations of jury taint for abuse of

discretion."        United States v. Paniagua-Ramos, 

, 249

(1st Cir. 2001) (citing United States v. Boylan, 

, 258

(1st Cir. 1990)). Likewise, "[w]e review a district court's denial

of a motion for new trial for abuse of discretion."

v. Huddleston, 

, 218 (1st Cir. 1999)).

                                      A.

             The first of the two questions before us is whether the

district court abused its discretion in fashioning and executing




                                    - 12 -
a procedure on remand to investigate the defendants' allegations

of juror bias.    After careful review, we conclude that it did not.

          On their first appeal, we held that French and Russell

had raised "colorable or plausible" allegations of Juror 86's bias

in the district court, 

, and thus that a

"court-supervised    investigation    aimed   at   confirming   and   then

exploring further the apparent dishonesty was called for,"

  When investigating allegations of juror bias, the "primary

obligation" of the district court "is to fashion a responsible

procedure for ascertaining whether misconduct actually occurred

and if so, whether it was prejudicial."

v. Zimny, 

, 465 (1st Cir. 2017)); see also United

States v. Rodriguez, 

, 58 (1st Cir. 2012); Paniagua-

(explaining that the district court must

select "a sensible procedure reasonably calculated to determine

whether something untoward had occurred" and then "even-handedly

implement" it).     The aim of such a procedure is "to ensure that

the parties 'receive[] the trial by an unbiased jury to which the

Constitution entitles them.'"        United States v. Bristol-Mártir,

, 42 (1st Cir. 2009) (alteration in original) (quoting

).   However, in meeting this obligation,

"[t]he type of investigation the district court chooses to conduct

is within [its] discretion."     

.        Because

"claims of jury taint are almost always case-specific," Paniagua-


                                - 13 -


, the district court takes responsibility

for appropriately calibrating its inquiry to the circumstances

presented.     See 

(explaining that "the

circumstances of each case . . . will determine the level of

inquiry necessary").

             "The    touchstone"        of     our   appellate     review    is

"reasonableness."         

.        "So long as

the district judge erects, and employs, a suitable framework for

investigating       the    allegation    and    gauging   its    effects,   and

thereafter spells out [her] findings with adequate specificity to

permit       informed        appellate         review,     [the       court's]

'determination . . . deserves great respect [and] . . . should not

be disturbed in the absence of a patent abuse of discretion.'"

(third alteration in original) (citation

omitted) (quoting United States v. Hunnewell, 

, 961

(1st Cir. 1989)); see also 

(explaining that

the case law in this circuit "emphasize[s] the district court's

discretion in determining 'the scope of the resulting inquiry and

the mode and manner in which it will be conducted'" (quoting

)).

             In this case, the district court responded to the gravity

of the defendants' claims of bias with a formal evidentiary

hearing -- the gold standard for an inquiry into alleged juror

misconduct.     Cf. 

.              While we have not


                                    - 14 -
required that district courts always implement a full evidentiary

proceeding in response to an allegation of juror bias, in some

circumstances a formal hearing may be required.

juror bias constitutes a structural defect "not susceptible

to harmlessness analysis,"

along with the difficulties

inherent in questioning a juror several years after the end of

trial, further rendered the district court's response appropriate.

           Additionally, the procedures that the district court

adopted and implemented for the evidentiary hearing were rigorous

and well thought-out.      During the hearing, Juror 86 testified at

length under oath, and all parties were permitted to be present

throughout the questioning and to cross-examine Juror 86.                The

district   court    afforded   wide    latitude   to   counsel    in   asking

questions at the hearing and admitted evidence and stipulations.

This is not a situation where the court simply let the juror decide

for   herself   whether    she   was    biased    without   investigating

further.   Contra United States v. Rhodes, 

, 601 (1st

Cir. 1977).

           The defendants nonetheless contend that the court abused

its discretion in fashioning procedures to investigate Juror 86's

alleged bias.      Russell challenges the court's decision to appoint

counsel for Juror 86, and both defendants object to the court's




                                 - 15 -
decision not to question Juror 86 from the bench.3                      Neither of

these contentions persuades us.

                                         1.

              The defendants point to no case holding that a court

investigating juror bias or misconduct may not appoint counsel for

the juror.      And we know of at least one reported case in which

another district court appointed counsel for a juror.                   See United

States   v.    Lawson,   

,    640   n.13    (4th   Cir.   2012).

Appointing counsel for Juror 86 posed advantages and disadvantages

for the court's inquiry.         On the one hand, it may have increased

the likelihood that the juror would take the inquiry seriously and

would refresh her memory before showing up at the courthouse (as,

indeed, she did).        On the other hand, it might have made her

responses      more   guarded.         Additionally,         appointing     counsel

mitigated the potential consequences of the court's inquiry for

Juror 86 herself, including the possibility of contempt sanctions

and the potential financial burden of having to retain counsel

independently.        These    considerations,        among   others,     call   for

judgment and discretion, not a rule of law.                  Further, nothing in

Juror 86's actual testimony suggests that the investigation into




     3  Russell also argues that the district court improperly
"elevat[ed] 'motive' to be a sine qua non [of] proving reversible
bias or a valid basis for cause." We address this argument as
part of our discussion of the defendants' substantive arguments in
Part II.


                                       - 16 -
her bias would have gone differently if the court had not appointed

counsel.   Thus, we have no basis for finding that the district

court abused its discretion in choosing a "methodologically sound"

means of investigating juror bias.    See United States v. Bradshaw,

, 291 (1st Cir. 2002).

                                 2.

           Nor do we find any abuse of discretion in the district

court's decision to rely on direct- and cross-examination by

counsel rather than questioning Juror 86 from the bench.             The

appropriateness of questioning witnesses or jurors from the bench

varies depending on the circumstances.      For example, while judges

are permitted to ask questions at trial, see Fed. R. Evid. 614,

such questioning is not always beneficial because it can give rise

to claims of favoritism and taint jurors' perceptions of a judge's

impartiality, see, e.g., United States v. Rivera-Rodríguez, 

, 111 (1st Cir. 2014).        By contrast, it is sometimes

preferable for judges to question potential jurors from the bench

during voir dire, see Fed. R. Crim. P. 24(a), so that counsel may

avoid making potential jurors uncomfortable and thereby avoid the

risk of prejudicing their clients before trial even begins.

           Post-trial examinations of a juror present different

practicalities.     For   example,    sometimes   the   focus   of   the

examination is obvious, making it most practical for the court to

simply ask what it needs to know.       See, e.g., 

17 -
465–66; 

–50; Tavares v. Holbrook,

, 2–3 (1st Cir. 1985).       On other occasions, such as in

the circumstances presented in this case, protracted and far-

ranging inquiry may be required, making it less practical for the

judge to direct the questioning.      Further, counsel need not be as

hesitant to interrogate a juror post-trial as they might have been

pre-trial because there is little to no risk that annoying the

juror will prejudice their clients. Thus, we see no obvious reason

why competing post-trial examinations of a juror by counsel would

be insufficient to reveal any bias held by that juror.

             Against this background of alternative approaches that

can be tailored to the needs of the specific case, our standard of

review does not call on us to second-guess the district court's

decision to have competent counsel alone do the questioning.          See

(declining "to second-guess the

lower court's judgment as to what methodology was best calculated

to get at the truth in this instance"); United States v. Ortiz-

Arrigoitia, 

, 443 (1st Cir. 1993) ("The trial judge is

not . . . shackled to a rigid and unyielding set [of] rules and

procedures     that   compel   any   particular   form   or   scope    of

inquiry.").

             Our decision in 

, is not

to the contrary.      In that case, we found an abuse of discretion

because the jurors had not been questioned at all -- by the court


                                 - 18 -
or counsel -- as to whether they were unduly influenced by one

juror's     presentation         of     improper     outside    research.

suggest that the district court must always

conduct the questioning.               The defendants also point to Dyer v.

Calderon, 

(9th Cir. 1998), where the Ninth Circuit

admonished the trial court of its "independent responsibility to

satisfy [itself] that [an] allegation of bias is unfounded."

   Dyer, though, involved a situation where defense counsel

were not themselves in a position to aggressively question the

juror, as the trial was still underway.

United States v. Resko, 

(3d Cir. 1993), does not help his position either.                      There, the

only effort made by the district court to investigate the claims

of juror misconduct was to distribute a questionnaire asking jurors

whether they had talked to other jurors during the trial and

whether they had formed an opinion as to guilt because of those

conversations.

        Neither the district court nor

counsel engaged in individualized questioning of the jurors, and

the     responses     to    the       questionnaire     supplied      insufficient

information to rout out any potential prejudice.

             In    sum,    the    questioning      undertaken    by   counsel   was

sufficient    to    address      the    defendants'    concerns    of   Juror 86's

bias.     Indeed, the defendants complain of no question that they

were not allowed to ask Juror 86.                 Accordingly, we find no abuse


                                         - 19 -
of discretion by the district court in adopting and implementing

procedures to investigate the claims of juror bias on remand.

                                        B.

            Turning to the defendants' substantive argument that the

district court erred in denying the motion for new trial, we again

find no abuse of discretion warranting a new trial.

            "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 [defendant] must first

demonstrate that a juror failed to answer honestly a material

question on voir dire.'"             

(emphasis

omitted) (quoting McDonough Power Equip., Inc. v. Greenwood, 

, 556 (1984)).        Second, the defendant must "further show

that a correct response would have provided a valid basis for a

challenge   for    cause."      Id.    (quoting     

).   The party seeking to overturn the jury's verdict bears the

"burden of showing the requisite level of bias by a preponderance

of the evidence."       

.

            The second element -- whether a correct response would

have given rise to a valid basis for a challenge for cause --

depends on whether "a reasonable judge, armed with the information

that the dishonest juror failed to disclose and the reason behind

the juror's dishonesty, would conclude . . . that the juror lacked

the   capacity    and   the   will    to   decide   the   case   based    on    the


                                      - 20 -
evidence."

     This inquiry is both context-specific

and fact-specific and must be based on the "totality of the

circumstances,"        including:           "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."

information about Juror 86's sons' involvement with

marijuana use and sales was plainly material to this case (although

she    could     not   have    known    that    when    she   deemed     it    "not

applicable").      It might have engendered strong emotions that would

cause her to perform poorly as a juror.                It might have made her

sympathetic to defendants charged with marijuana usage.                       Or it

might have made her angry at someone who manufactured marijuana.

For    these    reasons,      we   previously   concluded        that   Juror 86's

dishonest conduct raised a "colorable or plausible" claim of the

type of bias that could warrant a new trial.               

.   Thus, an investigation of the facts was necessary.                 See

much of the air out of the

balloon.   No connection between Juror 86's sons and the defendants

was shown.      The charges against her sons, while involving illegal

drugs, bore little relationship to the large-scale manufacturing

operation that the defendants were charged with running.                  Juror 86


                                       - 21 -
offered    no   hint   that   she   held    either    the     defendants      or   the

government responsible for her sons' circumstances.                  Further, none

of the drug crimes involved Juror 86 herself.                 In the judgment of

the experienced trial judge who watched her testify for over two

hours, she displayed no strong emotions that may have fueled a

bias.     And there is no suggestion in the record that she lied to

get on the jury in this case.

             The defendants place great emphasis on the fact that the

district court ultimately could not determine exactly why Juror 86

filled out her questionnaire inaccurately or failed to respond to

the relevant questions posed during oral voir dire.                  But the court

did   exclude    the    explanations       that    would    most     likely    cause

concern.     Juror 86 was not a habitual liar; she did not employ

deceit in order to get on the jury in this case; and her conduct

was not the product of undue emotion.                Further, as noted above,

Juror 86 was not a party to any criminal charges, and her sons had

no apparent connection with anyone involved in this case.                      While

not exhaustive, these findings left no likely explanation that

would reveal any disqualifying bias toward either the defendants

or the government.

             Moreover, Juror 86 testified that she had possessed

limited     information       about     the       specifics     of     her     sons'

charges.     Juror 86 had herself smoked marijuana in the distant

past,     indicated    that   she     lacked   strong       opinions   about       the


                                      - 22 -
legalization of marijuana, and reiterated that her sons' marijuana

use did not particularly concern her. By contrast, the juror whose

bias led us to vacate a death penalty in Sampson expressed that

she was "deeply ashamed" about her daughter's 

; see also

(observing that the juror "could

not   discuss    those    matters      candidly,      unemotionally    or,   often,

coherently" (quoting United States v. Sampson, 

, 193 (D. Mass. 2011))).

             Russell's reference to the example of Juror 10, who was

excused for cause by the magistrate judge based on her answers to

the juror questionnaire, does not change the result.                     Like the

juror in Sampson, and unlike Juror 86, Juror 10 had been "clearly

emotional"      about    her   son's    marijuana      charges.      Although   the

defendants    suggest     that    Juror 86      was    unemotional    because   her

counsel had coached her on how to appear "calm," this assertion is

speculative and therefore does not disturb the experienced trial

judge's determination that Juror 86 was "remarkably unemotional."

             Of course, the "reason behind the juror's dishonesty" is

important when considering whether a reasonable judge would strike

the juror for cause.           

(quoting 

).           But not all motives are equally alarming.

As the Supreme Court has explained, while "motives for concealing

information may vary, . . . only those reasons that affect a

juror's impartiality can truly be said to affect the fairness of


                                       - 23 -
a trial."     

.      Here, the testimony

elicited at the evidentiary hearing and the district court's

findings eliminated the motives that usually tend to show bias,

and there is no suggestion in the record that Juror 86 had some

other motive that would cast doubt on her impartiality.   We simply

have a juror who, as she explained, decided that the information

about her family was "not applicable."     Although the reasons why

she felt that way remain unclear, the lack of clarity, by itself,

does not dictate a finding that she possessed a disqualifying

bias.   Indeed, we see in the record little if any evidence that

Juror 86 was biased in any way adverse to the defendants.

            The defendants assert that Juror 86's memory loss caused

the lack of clarity and that the burden should therefore be shifted

from them to the government, citing to the following cautionary

language in French:

            If the staleness of the memories resulting
            from t[he] additional two-year period [of
            delay between the defendants' filing of a
            motion for new trial and our decision in
            French] becomes a problem that cannot be
            solved on remand, we think it only fair for
            that to cut against the 

.      But the district court supportably concluded

that the record lacked evidence of any lapse in Juror 86's memory

caused by the two-year delay.      The defendants object that the

district court should have held any and all lapses in Juror 86's

memory against the government -- including memory lapses resulting


                               - 24 -
from the earlier period of time between jury selection and their

first motion for a new trial, as well as memory lapses resulting

from the later period of time between our decision in French and

the evidentiary hearing on remand.            But this argument overlooks

the general rule that the party seeking to overturn the jury's

verdict bears the "burden of showing the requisite level of bias

by   a   preponderance   of    the   evidence."     

.     Although our decision in French noted that an exception to

the general rule might apply if Juror 86's memory loss became "a

problem that [could not] be solved on 

,

that possibility did not come to pass.            To the contrary, as we

have already explained, the district court was able to exclude the

most obvious indicators of bias from the evidence that was in the

record.    And, with those most concerning motivations excluded, the

defendants failed to posit any other concerning motive that might

explain the juror's conduct but that the passage of time prevented

them from uncovering.

            The fact that a prospective juror has a family member

who has run afoul of laws against drug possession does not by

itself disqualify a juror from sitting on a jury in a case like

this.     Rather, it invites further inquiry to see if the family

member's    experience   has    likely   affected    the   ability   of     the

prospective juror to be fair.          In this instance, that follow-up

inquiry was doubly warranted because Juror 86 initially withheld


                                     - 25 -
reporting her sons' experiences.              That withholding suggested that

she might have had strong feelings one way or the other concerning

criminal prosecutions relating to marijuana. As we have described,

the    district    court    conducted     that   inquiry.      In   addition   to

confirming that the experiences Juror 86 omitted were not her own,

the district court's inquiry turned up significant facts that were

not known at the time of the defendants' first appeal: It revealed

that the experiences of Juror 86's family members were quite

different from those of the defendants; that Juror 86 was not

especially emotional about the subject; and that any inference of

any bias adverse to defendants was weak.             Although the inquiry did

not    illuminate     the       exact   reason    for    Juror 86's     dishonest

conduct, it also did not yield any evidence that her dishonesty

was motivated by bias or that the facts she had concealed would

have    otherwise         affected      her    ability    or   desire     to   be

impartial.        Based    on    this   information,     and   after    observing

Juror 86 testify for roughly two hours, the experienced trial judge

found that she lacked the type of bias that would disqualify her




                                        - 26 -
for cause.4   We hold, simply, that the trial judge did not abuse

his discretion in making that determination.

                               III.

          Based on the foregoing, we affirm the district court's

denial of the defendants' motion for a new trial.




     4 Accordingly, we reject Russell's argument that the district
court improperly elevated motive to be a "sine qua non" of proving
reversible bias. Similarly, we are not persuaded that the evidence
other than the evidence of motive tilted toward disqualification.


                              - 27 -