DOJ-OGR-00009212.pdf

Case 1:20-cr-00330-PAE Document 616 Filed 02/24/22 Page 22 of 32 "This means that 'the district court must determine if it would have granted the hypothetical challenge' if it had known the true facts." Id. (quoting Stewart, 433 F.3d at 304) (citing Greer, 285 F.3d at 171; United States v. Shaoul, 41 F.3d 811, 816 (2d Cir. 1994) (noting that under the second prong of McDonough, a defendant must have a basis for arguing that the district court is required to sustain his challenge for cause)). As in Daugerdas, and under any reading of McDonough, Juror No. 50's misconduct demonstrates that he was incapable of being an impartial juror and the Court would have struck him for cause. See id. The government's contrary arguments do not withstand scrutiny. Foremost, the government mischaracterizes Ms. Maxwell's argument and then attempts to shoot down the strawman. Ms. Maxwell does not argue that every person who has been a victim of sexual assault or sexual abuse was subject to a "mandatory" challenge for cause based on implied bias. Ms. Maxwell's argument is simply that Juror No. 50 was impliedly biased—an argument more than supported by the record, Juror No. 50's pattern and practice of telling falsities to the Court, and the statements of Juror No. 50 himself. Likewise, the government misunderstands Ms. Maxwell's argument about Juror No. 50's false claims is part of his pattern and practice of giving false answers under oath during voir dire, in a (successful) attempt to serve as a juror. "The deliberateness of the particular lies evidence partiality." Greer, 285 F.3d at 173. 17 DOJ-OGR-00009212