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Case 1:20-cr-00330-PAE Document 648 Filed 03/15/22 Page 14 of 16

134:15-22 (stating during voir dire that Juror 50 had no doubt about his ability to be fair to both sides and that he did not have any reason to think he could not be fair and impartial)). Juror 50’s hearing testimony is further corroborated by the fact that jury deliberations lasted for five days, during which time the jury asked a number of questions of the Court, sought transcripts of a large volume of trial testimony, and ultimately rendered a split verdict by declining to find the defendant responsible for Count Two. See Greer, 285 F.3d at 171 (“The court . . . noted that the outcome of the trial demonstrated that all the jurors . . . fairly considered the evidence.”). These objective facts indicate that the jury remained impartial.

The defendant’s failure to demonstrate actual bias is fatal to her motion. (See Dkt. No. 643 at 21 (citing Smith v. Phillips, 45 U.S. 209, 215 (1982), for the proposition that the remedy is limited to a hearing for “actual bias” and noting that the Second Circuit has not decided whether implied or inferred bias may be considered in this context)). But even if the Court were to consider the defendant’s arguments regarding implied or inferred bias, they too are meritless.

The defendant has argued that bias should be implied because of alleged similarities between Juror 50’s personal experiences and the issues being litigated. (See Dkt. No. 642 at 31-33). The defendant’s argument misapprehends both the facts and the law. The Second Circuit has rejected the notion that similarity of conduct is a proper basis to make a finding of mandatory, implied bias, and the circumstances here do not fall within the extremely narrow categories of implied bias that the Second Circuit has recognized. (See Dkt. No. 643 at 24-27). Moreover, the manner in which the Court handled the voir dire of prospective jurors who reported having experienced sexual abuse makes clear that the Court would not have made a finding of implied bias. (See id. at 27-28). And in any event, Juror 50’s testimony at the hearing demonstrated that the sexual abuse he described experiencing is not particularly similar to the abuse experienced by

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