DOJ-OGR-00009136.pdf

Case 1:20-cr-00330-PAE Document 615 Filed 02/24/22 Page 17 of 49 Shaoul. Thus, in the Second Circuit,9 it is a “threshold requirement” to establish that a juror intentionally lied or consciously deceived the court. See Shaoul, 41 F.3d at 815; Nix, 275 F. Supp. 3d at 437; Sattar, 395 F. Supp. 2d at 72 (“The failure to answer honestly must be deliberate; a ‘juror’s good faith failure to respond, though mistaken, [does] not satisfy even the first prong of the test.’” (quoting Shaoul, 41 F.3d at 815)); United States v. Ruggiero, No. 97 Civ. 2925 (HB), 2001 WL 286751, at *3 (S.D.N.Y. Mar. 22, 2001) (rejecting claim of juror misconduct in voir dire, concluding “it is not clear that [the juror’s] failure to respond to the Court’s question was a deliberate attempt at dishonesty, as she only failed to answer the court’s question.”); Perez v. Manhattan Jeep Eagle, No. 92 Civ. 9521 (DLC), 1997 WL 403458, at *5 (S.D.N.Y. July 17, 1997) (“[T]he first prong of the test requires a determination of whether juror number one deliberately lied to the Court during voir dire, or whether his answer was the result of a good faith misunderstanding of the question.”). In sum, to satisfy the first prong of the governing test, the defendant must establish dishonesty by Juror 50—a deliberate falsehood or deceit, rather than an honest mistake. b. The Current Record Does Not Support a Finding of Deliberate Falsehood On the current record, there is no basis for the Court to find that Juror 50 gave any deliberately false answer during voir dire. To be sure, if his public statements regarding being a victim of sexual abuse were truthful,10 it would appear that Juror 50 answered Question 48 9 While some circuits have reached a different result, the Second Circuit’s view appears to be the prevailing one. See, e.g., Fitzgerald v. Greene, 150 F.3d 357, 364 n.3 (4th Cir. 1998) (collecting cases). 10 It is of course possible that Juror 50’s unsworn public statements were not truthful, while his sworn answers on the questionnaire were. This is a threshold fact that must be determined at a hearing. But for purposes of discussion in this brief, the Government assumes that Juror 50’s public statements on this subject were truthful. 15 DOJ-OGR-00009136