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Case 1:20-cr-00330-PAE Document653_ Filed 04/01/22 Page 13 of 40 The parties dispute whether the first prong of McDonough requires “deliberate juror misconduct”—that is, whether the juror must have deliberately provided a false answer in voir dire. The Government, relying on Second Circuit precedent such as United States v. Shaoul, argues that a deliberate falsehood is required. Gov. Br. at 13 (citing Shaoul, 41 F.3d at 815-16). In contrast, the Defendant contends that McDonough does not require deliberateness and that an inadvertent false statement satisfies the first prong. Maxwell Br. at 23-28; Maxwell Reply at 9- 14, Dkt. No. 644.7 The Court does not resolve this legal dispute because, as explained in the analysis section below, regardless of which approach is the correct one, the Court finds that the false answers were not deliberate and that the second prong of McDonough is not satisfied. Under the second prong of McDonough, the Court “must determine if it would have granted the hypothetical challenge” for cause if the juror had responded accurately. United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2002); United States v. Stewart, 433 F.3d 273, 304 (2d Cir. 2006). “Challenges for cause are generally based on actual bias, implied bias, or inferable bias.” Greer, 285 F.3d at 171. These categories do not always elucidate the analysis and there is overlap (and sometimes confusion) in how they are discussed in some of the cases. Nevertheless, it is important to attempt to delineate. Actual bias is “bias in fact,” due either to the juror admitting partiality or a judge finding actual partiality based on the juror’s voir dire answers. United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997). Implied bias is “bias presumed as a matter of law” due to a juror’s relationship to the parties or connection to the actual crime itself. Greer, 285 F.3d at 171-72. Finally, a judge may infer bias when actual or implied bias does not apply. “Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse 3 Tn an amicus curiac brief, the National Association of Criminal Defense Lawyers also argues that deliberateness is not required under McDonough. See Dkt. No. 614. 13 DOJ-OGR-00010336