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Case 1:20-cr-00330-PAE Document 649 Filed 03/15/22 Page 3 of 12

LAW OFFICES OF BOBBI C. STERNHEIM

Question 49, which asked “Have you or a friend or family member ever been accused of sexual harassment, sexual abuse, or sexual assault?” (Court Exhibit #1 at 25). Juror 50 had answered “No.” (Id.). Although Juror 50 initially claimed that this was an accurate response because he did not consider his stepbrother a “family member,” Juror 50 eventually admitted that this was not an accurate answer and that the truthful answer was “Yes (friend or family member)” because a stepbrother is a family member and Juror 50’s mother reported the stepbrother’s sexual abuse to the police when Juror 50 disclosed it to her several years after it happened. (Tr. 8-9, 11-13).

Accordingly, the record is clear that several of Juror 50’s voir dire responses were false, satisfying the first prong of the McDonough test. See United States v. Stewart, 433 F.3d 273, 303 (2d Cir. 2006) (“[A] party alleging unfairness based on undisclosed juror bias must demonstrate first, that the juror’s voir dire response was false and second, that the correct response would have provided a valid basis for a challenge for cause.” (citing McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984)).¹

II. Had Juror 50 Answered the Questions Truthfully, He Would Have Been Struck for Cause

The Court must next consider whether the correct responses to the voir dire questions would have provided Ms. Maxwell with a valid basis to challenge Juror 50 for cause. See Stewart, 433 F.3d at 303. The Court must determine whether Juror 50 was capable of being an impartial, unbiased juror “capable and willing to decide the case solely on the evidence before

¹ Ms. Maxwell reiterates her position that it is not necessary for the false statement to be intentional or deliberate to satisfy the first prong of the McDonough test. See Motion at 23-28; Reply at 9-10. Nevertheless, the record establishes that Juror 50’s false statements were intentional. (See discussion infra). Even if the Court determines that they were not, and that McDonough requires an intentional false statement, Ms. Maxwell is still entitled to a new trial based on Juror 50’s bias. See Skaggs v. Otis Elevator Co., 164 F.3d 511, 516 (10th Cir. 1998) (“Although unable to prove a juror’s incorrect response to a material question was intentional, a movant may introduce evidence demonstrating bias on the part of a juror who gave an incorrect but not intentionally dishonest answer during voir dire.”).

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