DOJ-OGR-00009211.jpg

Case 1:20-cr-00330-PAE Document616- Filed 02/24/22 Page 21 of 32 D. If Juror No. 50 had truthfully answered Questions 25 and 48, the correct responses would have provided a valid basis for a challenge for cause. It is both unnecessary and premature for this Court to consider whether Juror No. 50 was actually biased. It’s unnecessary because any bias is sufficient to require a new trial, and here the record shows that Juror No. 50 was both impliedly and inferably biased. Because Juror No. 50 was impliedly and inferably biased, a new trial is required. Martinez-Salazar, 528 U.S. at 316. And it’s premature because the actual bias inquiry depends in part on the statements a prospective juror makes during voir dire. United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (“A juror is found by the judge to be partial either because the juror admits partiality, or the judge finds actual partiality based upon the juror’s voir dire answers.”’). Here, Juror No. 50 hasn’t had to answers the questions that would have been posed to him if he had answered Questions 25 and 48 truthfully. Only a hearing—if this Court orders one—will permit the Court and parties to evaluate actual partiality. The government here attempts to raise the bar for relief, just as it did in United States v. Daugerdas: “The Government urges this Court to adopt a narrow reading of McDonough unsupported by law. But contrary to the Government’s contention, the test is not whether the true facts would compel the Court to remove a juror for cause, but rather whether a truthful response ‘would have provided a valid basis for a challenge for cause.’” United States v. Daugerdas, 867 F. Supp. 2d 445, 468 (S.D.N.Y. 2012) (ordering new trial for two of three defendants based on juror providing false answers during voir dire and concluding that the third defendant waived the new trial argument), vacated and remanded sub nom. United States v. Parse, 789 F.3d 83 (2d Cir. 2015) (reversing district court’s waiver conclusion) (quoting McDonough, 464 U.S. at 556). 16 DOJ-OGR-00009211