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Case 1:20-cr-00330-PAE Document 616 Filed 02/24/22
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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 indeed, for all the reasons given, the case for inferred bias here is
stronger than in Torres.
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.
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