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Case 1:20-cr-00330-PAE Document 644 _ Filed 03/11/22 Page 23 of 32 The government fails to distinguish United States v. Torres, 128 F.3d 38 (2d Cir. 1997). The government admits the case is analogous because the juror in Torres engaged in conduct similar to that charged against the defendant, while here Juror No. 50 was the victim of conduct similar to that charged against Ms. Maxwell. The best the government can muster is to say that this Court has discretion—‘ample discretion,” says the government—to chart a different path here. But the government doesn’t offer any reason why this Court’s discretion should not be guided by the Second Circuit’s reasoning in Torres. And that’s because there’s no good reason to treat the two cases differently—aindeed, for all the reasons given, the case for inferred bias here is stronger than in 7orres. Finally, the government’s argument here is directly contrary to the argument it made in opposition to the new trial motion in Daugerdas. In that case, the government argued that the defendants were not entitled to a new trial in part because the juror did not “conceal personal background material so analogous to the case on trial that bias was implied as a matter of law.” Doc. 487, p 21, United States v. Daugerdas, No. 1:09-cr-00581-DLC, Sept. 9, 2011. In the government’s words: [T]hose courts have granted a new trial or conducted a post-verdict evidentiary hearing only when . . . (ii) following the reasoning of Justice O’Connor’s concurrence in Smith v. Phillips, 455 U.S. at 221, where the juror in question concealed personal background information so analogous to the case on trial that bias was implied as a matter of law. See Dyer v. Calderon, 151 F.3d 970, 975 (9th Cir. 1998) (juror in a murder trial concealed the fact that her brother had been murdered in manner similar to that alleged against defendant); Burton v. Johnson, 948 F.2d 1150, 1154 (10th Cir. 1991) (implied bias found in case involving juror who suffered from domestic abuse similar to that of defendant, who was accused of killing her husband). Id. The government was right then about when a new trial is required—when, as here, the juror in question concealed personal background information so analogous to the case on trial that bias is implied as a matter of law—and it is wrong now. 18 DOJ-OGR- 00009892