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Case 1:20-cr-00330-PAE Document 648 Filed 03/15/22 Page 5 of 16

intended to mislead the Court while completing his jury questionnaire or during voir dire. Juror 50 testified under oath that he made an “[i]nadvertent mistake,” “one of the biggest mistakes [he has] ever made in [his] life.” (Mar. 8, 2022 Tr. at 14:23-24). On this record, the defendant cannot satisfy the first prong of the McDonough test.

In particular, at the hearing, Juror 50 acknowledged that he inaccurately answered Question 48 of the written questionnaire, which asked prospective jurors whether they themselves or any friends or family members had been a victim of sexual harassment, sexual abuse, or sexual assault. Juror 50 explained that he “didn’t see the part [of Question 48] where it says self, I just–I completely skimmed way too fast.” (Id. at 14:10-11; see also id. at 14:23-15:2). The questionnaire and the process by which Juror 50 completed the questionnaire “must be viewed in context.” United States v. Fell, No. 01 Cr. 12 (WKS), 2014 WL 3697810, at *13 (D. Vt. July 24, 2014). Juror 50’s description of the process of completing the questionnaire on November 4, 2021 credibly explained how he came to make unintentional mistakes on the questionnaire. Juror 50 testified that he arrived at the courthouse early, waited 45 minutes to get through the security line, and then sat in the courthouse for hours before the Court’s video with instructions on the questionnaire was played successfully. (Id. at 12:4-6, 14:10-19). He explained that by the time he was answering the later questions in the questionnaire, such as Question 48, he was “super distracted” because of his proximity to the table where prospective jurors were dropping off their questionnaires and “all the noise going on around” him, noting that “[p]eople were asking

McDonough’s prong one, [the juror] dishonestly answered questions at voir dire”). Further, the defendant suggests that Shaoul is inconsistent with United States v. Langford, 990 F.2d 65 (2d Cir. 1993), which—the defendant says—held that deliberateness is not required on prong one. She therefore argues that, as the earlier decision, Langford controls rather than Shaoul. (Dkt. No. 644 at 12-13). But as Shaoul itself explained, it is not inconsistent with Langford; rather, the defendant’s reading of Langford is incorrect. 41 F.3d at 815-16.

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