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Case 1:20-cr-00330-PAE Document 648 Filed 03/15/22 Page 4 of 16

In short, at each step of the analysis, the defendant has not come close to establishing that
the extraordinary remedy of a new trial is warranted. Accordingly, the Court should deny the
defendant’s motion for a new trial.

I. The Defendant’s Motion for a New Trial Should Be Denied

A defendant seeking Rule 33 relief based on alleged juror misrepresentations during voir
dire must satisfy a conjunctive two-part test: “a party must first demonstrate that a juror failed to
answer honestly a material question on voir dire, and then further show that a correct response
would have provided a valid basis for a challenge for cause.” McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984). The defendant cannot satisfy either prong of the
McDonough test.

A. The Record Does Not Support a Finding of Deliberate Falsehood

As set forth in the Government’s opposition to the Defense Motion, to satisfy the first
prong, the defendant must demonstrate that the juror committed a deliberate falsehood, not an
honest mistake.¹ (Dkt. No. 643 at 11, 13-15). There is no evidence in the record that Juror 50

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¹ In her reply brief (Dkt. No. 644 at 12-14), the defendant asks the Court to ignore the Second
Circuit’s binding, on-point decision in United States v. Shaoul, 41 F.3d 811 (2d Cir. 1994), which
requires deliberateness. The Court should reject this invitation.

The defendant asserts that Shaoul’s holding that “a defendant must show . . . that a juror gave a
dishonest answer,” id. at 816, is dicta, claiming that Shaoul was decided on the second prong of
the McDonough test. (Dkt. No. 644 at 12). Not so. In Shaoul, the Circuit expressly affirmed the
district court’s conclusion that the defendant “had failed to satisfy the threshold requirement of the
McDonough test,” before concluding that he “also cannot satisfy the second part.” Id.; see, e.g.,
Pyett v. Pa. Bldg. Co., 498 F.3d 88, 92 (2d Cir. 2007) (“Our conclusion . . . was an alternative
holding, not dicta, and continues to bind our Court.”), rev’d on other grounds sub nom., 14 Penn
Plaza LLC v. Pyett, 56 U.S. 247 (2009). This holding stands in stark contrast to the passing
statements made in later cases the defendant cites, which did not consider whether the first prong
requires deliberateness, much less reject Shaoul. See United States v. Stewart, 433 F.3d 273, 303-
05 (2d Cir. 2006) (explaining that only two “alleged intentional omissions” justified further
inquiry, but even if proved, neither would have satisfied the second prong); United States v. Greer,
285 F.3d 158, 170 (2d Cir. 2002) (finding it “unnecessary to determine whether, under

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