Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 1 of 36

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1 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 1 of 36 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : -v- : PAUL M. DAUGERDAS, : DONNA GUERIN, DENIS FIELD, : RAYMOND CRAIG BRUBAKER, and DAVID PARSE, : S3 09 Cr. 581 (WHP) Defendants. : : x MEMORANDUM OF LAW OF UNITED STATES IN OPPOSITION TO DEFENDANTS MOTION FOR A NEW TRIAL PURSUANT TO RULE 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE STANLEY J. OKULA, JR., NANETTE L. DAVIS, JASON P. HERNANDEZ, Assistant United States Attorneys Of Counsel PREET BHARARA United States Attorney for the Southern District of New York Attorney for the United States of America

2 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 2 of 36 TABLE OF CONTENTS I. BACKGROUND...2 II. APPLICABLE LEGAL PRINCIPLES...4 A. Post-Verdict Inquiries Into Alleged Juror Misconduct Are Strongly Disfavored...4 B. A New Trial Is Warranted Only If the Defendants Can Show Both a Juror s Material Lies at Voir Dire and that an Accurate Response Would Establish Juror Bias...6 III. DISCUSSION...15 A. The Split Verdict Is Compelling Evidence that the Defendants Received a Fair Trial by an Impartial Jury...16 B. The Defendants Inference of Bias Argument Based On Conrad s False Answers At Voir Dire Is Contrary To Established Precedent, and Otherwise Unsupported by the Record...18 C. Defendants Have Presented No Evidence That Conrad Could Have Been Successfully Challenged For Cause Or That She Was Motivated By Bias...23 IV. CONCLUSION...29 i

3 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 3 of 36 TABLE OF AUTHORITIES FEDERAL CASES Buari v. Kirkpatrick, 753 F. Supp. 2d 282 (S.D.N.Y. 2010)...5 Burton v. Johnson, 948 F.2d 1150 (10th Cir. 1991)...21 Chase Manhattan Bank v. T&N plc, No. 87 Civ (JGK), 1997 WL (S.D.N.Y. Apr. 28, 1997)...12, 25 Conaway v. Polk, 453 F.3d 567 (4th Cir. 2005)...9, 21 Coughlin v. Tailhook Association, 112 F.3d 1052 (9th Cir. 1997)...11 Dall v. Coffin, 970 F.2d 964 (1 st Cir. 1992)...6 Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998)...21, 22 Green v. Vacco, 961 F. Supp. 46 (W.D.N.Y. 1997)...11 Green v. White, 232 F.3d 671 (9th Cir. 2000)...22 McCoy v. Goldston, 652 F.2d 654 (6th Cir. 1981)...21 McDonald v. Pless, 238 U.S. 264 (1915)...5 McDonough Power Equipment, Inc., v. Greenwood, 464 U.S. 548 (1984)...4, 6, 8, 10, 13 Perez v. Manhattan Jeep Eagle, No. 92 CIV (DLC), 1997 WL (S.D.N.Y. 1997)...22 Rutledge v. United States, 517 U.S. 292 (1996)...14 Smith v. Phillips, 455 U.S. 209 (1982)...9, 21 Tanner v. United States, 483 U.S. 107 (1987)...5, 27 United States v. Aiello, 771 F.2d 621 (2d Cir. 1985)...14, 16, 17, 28 United States v. Baker, 432 F.3d 1189 (11th Cir. 2005)...15 United States v. Boney, 97 F. Supp. 2d 1 (D.D.C. 2000)...11, 23 United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992)...17 ii

4 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 4 of 36 United States v. Colombo, 869 F.2d 149 (2d Cir. 1989)...6, 10, 18, 19 20, 22 United States v. Colombo, 909 F.2d 711 (2d Cir. 1990)...19 United States v. Cuthel, 903 F.2d 1381 (11th Cir. 1990)...14 United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974)...26 United States v. Dominguez, 226 F.3d 1235 (11th Cir. 2000)...14 United States v. Frost, 125 F.3d 346 (6th Cir. 1997)...9 United States v. Greer, 285 F.3d 158 (2d Cir. 2002)...7, 8, 9, 12, 14, 17, 20, 28 United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989)...5 United States v. Langford, 990 F.2d 65 (2d Cir. 1993)...7, 10, 11, 19, 20 United States v. Moore, 54 F.3d 92 (2d Cir. 1995)...6 United States v. Morales, 2011 WL (7th Cir. Aug. 18, 2011)...15, 17 United States v. Murray, 103 F.3d 310 (3d Cir. 1997)...6 United States v. North, 716 F. Supp. 652 (D.D.C. 1989)...11 United States v. North, 910 F.2d 843 (D.C. Cir. 1990)...9, 10, 11, 12, 20 United States v. Ross, 263 F.3d 844 (8th Cir. 2001)...11, 24 United States v. Sanchez 969 F.2d 1404 (2d Cir. 1992)...6 United States v. Scott, 854 F.2d 697 (5th Cir. 1988)...21 United States v. Shaoul, 41 F.3d 811 (2d Cir. 1994)...7, 12, 13, 20 United States v. Siegelman, 640 F.3d 1159 (11th Cir. May 10, 2011)...14, 15, 17 United States v. Stewart, 433 F.3d 273 (2d Cir. 2006)...5, 6, 7, 10, 12, 13, 20, 29 United States v. Sylvester, 232 Fed. Appx. 303, 2007 WL (4th Cir. 2007)...12 iii

5 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 5 of 36 United States v. Torres, 128 F.3d 38 (2d Cir. 1997)...6, 8, 9, 13 United States v. Vitale, 459 F.3d 190 (2d Cir. 2006)...21 United States v. Wood, 299 U.S. 123 (1936)...8 Zerka v. Green, 49 F.3d 1181 (6th Cir. 1995)...20 FEDERAL STATUTES AND RULES 28 U.S.C U.S.C. 1865(b)(4)...4, U.S.C. 1866(c)...13 Federal Rule of Evidence 606(b)...27, 28 iv

6 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 6 of 36 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : -v- : PAUL M. DAUGERDAS, : DONNA GUERIN, DENIS FIELD, : RAYMOND CRAIG BRUBAKER, and DAVID PARSE, : S3 09 Cr. 581 (WHP) Defendants. : : x MEMORANDUM OF LAW OF UNITED STATES IN OPPOSITION TO DEFENDANTS MOTION FOR A NEW TRIAL PURSUANT TO RULE 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE The United States respectfully submits this memorandum of law in opposition to the motion of defendants Paul Daugerdas, Donna Guerin, Denis Field, and David Parse (hereinafter the Defendants ), pursuant to Rule 33(a) of the Federal Rules of Criminal Procedure, seeking a new trial based on the alleged bias of Catherine M. Conrad, who was seated as Juror No. 1 at trial. In seeking this extraordinary relief relief that has never once been granted in the Second Circuit the Defendants argue that Conrad deliberately lied in response to several questions during voir dire and that Conrad s lies are evidence of an inferred bias against the Defendants that merits a new trial. (Memorandum of Law in Support of Defendants Motion for a New Trial or, in the Alternative, For an Evidentiary Hearing Concerning Juror No. 1 ( Def. Br. ) at 1). The Defendants are wrong. First, even if Conrad had told the complete truth, there is nothing in the law that would have required the Court to excuse her for cause. Second, the Defendants

7 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 7 of 36 claim of inferred bias is completely inconsistent with, and undermined by, the actual evidence of Conrad s voting record because we know that Conrad voted to convict some defendants, acquit one defendant entirely, and acquit one defendant of four out of six counts. Indeed, the fact that the jury in this case returned a split verdict following a complex trial, and after long, careful jury deliberations, is compelling evidence that the jury including Conrad performed its function fairly. On this basis alone, the cases cited by the Defendants are distinguishable. Nor can any specific bias against the Defendants be inferred from the personal information that Conrad concealed, either viewed separately or collectively; the Defendants contentions to the contrary are simply speculative. Thus, on this record and under controlling Supreme Court and Second Circuit precedent, the Defendants cannot show that Conrad harbored any bias against any of the Defendants, and their motion should be denied. I. BACKGROUND Following an eleven-week trial that included over 1300 exhibits, 41 witnesses, eight days of jury deliberations, and 46 jury notes, the jury on May 24, 2011 returned a split verdict against the five defendants. Defendant Paul Daugerdas was convicted of one count of conspiracy to defraud the United States and the IRS, to commit tax evasion, and to commit mail and wire fraud in violation of 18 U.S.C. 371, eighteen counts of tax evasion based on the evading of taxes of Daugerdas s tax shelter clients in violation of 26 U.S.C and 18 U.S.C. 2, three counts of personal income tax evasion in violation of 26 U.S.C. 7201, one count of corruptly obstructing and impeding the due administration of the Internal Revenue Laws in violation of 26 U.S.C. 7212(a), and one count of mail fraud in violation of 18 U.S.C and 2. Donna Guerin was convicted of the 2

8 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 8 of 36 1 conspiracy count, nine counts of tax evasion, a separate 7212(a) count, and the mail fraud count. Denis Field was convicted of the conspiracy count, four counts of tax evasion, the 7212(a) count, and the mail fraud count. David Parse was convicted of the 7212(a) count and the mail fraud count but was acquitted by the jury of the conspiracy count and three counts of tax evasion. Defendant Craig Brubaker was acquitted on all charges he faced, which included conspiracy, mail fraud, 7212(a), and substantive tax evasion counts. On July 8, 2011, the Defendants filed the instant Rule 33 motion seeking a new trial based 2 on allegedly false information provided by Conrad during voir dire. Specifically, the Defendants claim that Conrad failed to disclose that (i) she had obtained a law degree in 1997 and been admitted to the New York bar in 2000; (ii) she had been the subject of an investigation by state bar licensing authorities and her license had been suspended in 2007 due in large part to alcohol problems; (iii) she had lost a personal injury action and served as a witness there; and (iv) she and her husband had a number of arrests and criminal convictions (albeit nothing that would, by itself, disqualify her for jury service such as a felony conviction). (Def. Br. at 14-19). The Defendants acknowledge, however, that Conrad stated during voir dire that her father works as an immigration officer at the Department of Justice and that she was a plaintiff in a pending personal injury negligence action. (Def. Br. at 6). In support of the allegations laid out in their motion, the Defendants submitted copies of a number of Conrad s public records concerning her misdemeanor convictions and attorney 1 Guerin, Field, Parse, and Brubaker were charged together in a 7212(a) count separate from that in which Daugerdas was charged. 2 The Government does not dispute that Juror No. 1, Catherine M. Conrad, is the same person described in the Defendant s motion papers. Furthermore, for purposes of this brief, the Government does not dispute that Conrad made the false statements during voir dire, as alleged in the Defendants motion. However, the Government does dispute whether the evidence shows that Conrad s conduct was motivated by bias toward the defendants. 3

9 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 9 of 36 disciplinary proceedings. (Def. Br., Ex. 2-29). The Defendants argue that the Court must infer that Conrad deliberately failed to disclose the above information purportedly because she had a desire to be seated on the jury, which, in the Defendants view, evidences Conrad s impermissible bias against them. (Def. Br. at 20, 28). The Defendants claim that Conrad s honest disclosure of the information referred to above would have provided the defendants grounds to challenge Conrad for cause during voir dire, because Conrad s bias against the Defendants must be inferred from her record of convictions, arrests, and attorney discipline. (Def. Br. at 28). Additionally, the Defendants claim that Conrad s past alcohol abuse evidences a mental infirmity that alone would have disqualified her from jury service under 28 U.S.C. 1865(b)(4). (Def. Br. at 27). The motion should be denied. The test articulated by the Supreme Court and the Second Circuit requires that the Defendants bear the burden of proving not only that Conrad s answers were deliberately false, but also that accurate responses would have demonstrated bias sufficient to require dismissal for cause at voir dire. McDonough Power Equip., Inc., v. Greenwood, 464 U.S. 548 (1984). The defendants have not met their burden here. They have not shown that accurate responses would have shown bias requiring dismissal for cause. Nor have they demonstrated that Conrad was mentally incompetent under 28 U.S.C. 1865(b)(4) due to her past alcohol abuse. II. APPLICABLE LEGAL PRINCIPLES A. Post-Verdict Inquiries Into Alleged Juror Misconduct Are Strongly Disfavored. Courts strongly disfavor post-verdict inquiries into juror conduct. As the Supreme Court explained: Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time... after the verdict, seriously disrupt the finality of the process. Moreover, full and frank 4

10 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 10 of 36 discussion in the jury room, jurors willingness to return an unpopular verdict, and the community s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct. Tanner v. United States, 483 U.S. 107, (1987); see also United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (noting that post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting jury room deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts ). Indeed, the dangers of unchecked post-verdict inquiries into juror conduct are so great the Supreme Court has recognized that [t]here is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Tanner, 483 U.S. at 120. As the Supreme Court reasoned in McDonald v. Pless, 238 U.S. 264 (1915): [L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication[,] and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference. Accordingly, this Court has erected high barriers to such inquiries. See Buari v. Kirkpatrick, 753 F. Supp. 2d 282, 291 (S.D.N.Y. 2010) ( evidentiary hearings regarding claims of juror misconduct are an extraordinary remedy ). Granting a new trial based on alleged juror misconduct is such an extraordinary remedy that the Second Circuit has never found reason to overturn a verdict on the basis of juror nondisclosure under McDonough, [464 U.S. at 556], United States v. Stewart, 433 5

11 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 11 of 36 F.3d 273, 303 (2d Cir. 2006), and only once, see United States v. Colombo, 869 F.2d 149 (2d Cir. 1989), has remanded for an evidentiary hearing on the matter. Stewart, 433 F.3d at 303. B. A New Trial Is Warranted Only If the Defendants Can Show Both a Juror s Material Lies at Voir Dire and that an Accurate Response Would Establish Juror Bias The Sixth Amendment to the Constitution guarantees a defendant the right to an impartial jury, which has been described as a jury capable and willing to decide the case solely on the evidence before it. McDonough, 464 U.S. at 554. In McDonough, the Supreme Court set forth a two-part test for obtaining a new trial where a juror is alleged to have given an untruthful answer to a question on voir dire: 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. Id. at 556. Thus, as the parties seeking a new trial, it is the Defendants who bear the burden of proof. Moreover, this burden of proof must be sustained not as a matter of speculation, but as a demonstrable reality. Dall v. Coffin, 970 F.2d 964, 969 (1st Cir. 1992) (internal quotations omitted). The main factor in determining whether a juror should be excused for cause is whether the juror holds a particular belief or opinion that will prevent or substantially impair the performance of his duties as a juror in accordance with his instructions or his oath. United States v. Murray, 103 F.3d 310, 323 (3d Cir. 1997). Motions for a new trial based on newly discovered evidence should be granted only in extraordinary circumstances, United States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995), and are committed to the trial court s discretion, see McDonough Power Equip., 464 U.S. at 556, United States v. Sanchez, 969 F.2d 1404, 1413 (2d Cir. 1992)). United States v. Torres, 128 F.3d 38, 48 (2d Cir. 1997) (parallel citation omitted). See also Stewart, 433 F.3d at 304 ( [A district 6

12 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 12 of 36 court s] determination [whether he would have granted a challenge for cause] is reviewed for abuse of discretion and, in that regard, we have noted that [t]here are few aspects of a jury trial where we would be less inclined to disturb a trial judge s exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury. ) (quoting United States v. Greer, 285 F.3d 158, 172 (2d Cir. 2002) (internal quotations and citation omitted)). Contrary to the Defendants argument that a showing of a number of deliberate lies on voir dire alone provides sufficient grounds to infer bias and meet the second prong of the McDonough test (see Def. Br. at 28 ( [G]iven the nature and pattern of Conrad s deliberate lies during voir dire, an impermissible partiality and bias on Conrad s part must be inferred )), the Second Circuit has repeatedly made it clear that a new trial may not be granted under McDonough unless the defendant shows both deliberate dishonesty by the juror at voir dire and a valid challenge for cause based on the accurate answer. See Greer, 285 F.3d at 170 ( Both prongs [of the McDonough test] must be met before a new trial may be obtained. ); United States v. Shaoul, 41 F.3d 811, (2d Cir. 1994) ( We reiterate that, in order to obtain a new trial, a defendant must show both that a juror gave a dishonest answer, and that the correct answer would have provided a basis for the defendant to challenge the juror for cause. ) (emphases in original). Deliberate dishonesty at voir dire, standing alone, is insufficient to warrant a new trial under McDonough. See United States v. Langford, 990 F.3d 65, (2d Cir. 1993) (a juror s deliberate dishonesty does not warrant a new trial unless it bears on her impartiality). The Second Circuit in Greer reaffirmed the validity of Langford: [W]e emphasized that McDonough establishes a multi-part test in which a juror s dishonesty is among the factors to be considered in the ultimate determination of bias and that an analysis of bias is required even if the juror s erroneous response was deliberate. Greer, 285 F.3d at 173; see also Langford, 7

13 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 13 of F.2d at 68 ( Concurring in the [McDonough] judgment, Justice Brennan similarly stated that a second element - bias - should be required even if the juror s erroneous response was deliberate. Thus, he stated that the proper focus when ruling on a motion for new trial in this situation should be on the bias of the juror and the resulting prejudice to the litigant.... Whether the juror answered a particular question on voir dire honestly or dishonestly, or whether an inaccurate answer was inadvertent or intentional, are simply factors to be considered in th[e]... determination of actual bias. ) (bracket in original) (quoting McDonough, 464 U.S. at ) (Brennan, J., concurring in the judgment)). As the Supreme Court specifically noted in McDonough, a juror s motives for concealing information may vary, but only those reasons that affect a juror s impartiality can truly be said to affect the fairness of a trial. McDonough, id. at 556. Although the second prong of the McDonough test is framed in terms of a challenge for cause, Greer and Langford expressly equate this second prong with a finding of bias, which is the ultimate determination relevant to the Defendants motion. Challenges for cause generally fall into one of three limited categories: actual bias, implied 3 bias, or inferable bias. Torres, 128 F.3d at 43. Actual bias is bias in fact the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. Torres, id. (quoting United States v. Wood, 299 U.S. 123, 133 (1936)). Implied bias, also called presumed bias, is bias conclusively presumed as a matter of law, generally due to a relationship between the juror and the parties or the crime itself. See Torres, 128 F.3d at 45 ( automatically presumed 3 The challenges for cause at issue here must be distinguished from the commonplace practice of excusing a juror for hardship, scheduling, or other reasons that have nothing to do with that juror s impartiality. Although this latter type of excusal of a juror, the frequency of which differs from Judge to Judge, is commonly and colloquially referred to as excusing the juror for cause, that is wholly different than the challenge for cause articulated by the Second Circuit in the context of a new trial motion based on juror nondisclosure. 8

14 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 14 of 36 bias deals mainly with jurors who are related to the parties or who were victims of the alleged crime itself ). Implied bias applies in only extreme situations. Greer, 285 F.3d at 172 (citing Smith v. Phillips, 455 U.S. 209, 222 (1982) (O Connor, J., concurring)); accord United States v. Frost, 125 F.3d 346, 379 (6th Cir. 1997) ( The doctrine of presumed or implied, as opposed to actual, bias provides that, in certain extreme or exceptional cases, courts should employ a conclusive presumption that a juror is biased. ) (citations omitted). Defendants do not allege that either actual or implied bias exists in this case. Instead, they rest their arguments on the third category, inferred bias a category explicitly recognized by the Second Circuit in Torres,128 F.3d at 43, but nevertheless called into question in 4 other cases. Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias. Greer, 285 F.3d at 171 (quoting Torres, 128 F.3d at 47) ( the court is allowed to dismiss a juror on the ground of inferable bias only after having received responses from the juror that permit an inference that the juror in question would not be able to decide the matter objectively ). 4 Notwithstanding the Torres panel s listing of inferred bias as a recognized category, the Second Circuit in Greer suggested that it was an open question whether a post-trial allegation of jury partiality may be proven, after a finding of a lack of actual bias, by implied or inferred bias. Greer, 258 F.3d at 172 (citing Smith v. Phillips, 455 U.S. at 215 ( [T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias. )). See also id., 285 F.3d at 172 (district court found no bias on part of juror). Compare United States v. North, 910 F.2d 843, (D.C. Cir.) (per curiam), opin. withdrawn & superseded on other grounds by 920 F.2d 940 (D.C. Cir. 1990) (per curiam) (proof of actual bias required) with Conaway v. Polk, 453 F.3d 567, 588 (4th Cir. 2005) (courts have continued to recognize implied bias doctrine post- Smith; collecting cases). Although we think the better view is that actual bias must be demonstrated, on the record here the defendants do not satisfy any of the categories. 9

15 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 15 of 36 Thus, if the Defendants cannot show that an accurate answer would have established Conrad s bias against the Defendants, the Court may not grant a new trial even if Conrad is found to have deliberately lied in response to questioning at voir dire. It bears emphasis that the Second Circuit in Langford expressly rejected the argument that a court could find the second prong of McDonough to have been met without deciding whether the lies bore on her partiality: [W]e did not suggest a per se rule based simply on whether a prospective juror had lied, without respect to whether the dishonesty had a bearing on her impartiality. Langford, 990 F.2d at (holding that a juror s deliberate lies about her past arrests at voir dire were an insufficient basis to grant a new trial because the arrests themselves would not have indicated any bias or prejudice against the defendant and the juror s concealment of the arrests was not motivated by any bias against the defendant). See also Stewart, 433 F.3d at 305 (citing Greer and Colombo for the proposition that the particular lies must suggest bias and that lies alone are insufficient). Although the Second Circuit has held that bias may be shown where the juror conceals information that bespeak[s] both a knowledge of evidentiary facts and a view as to the merits of the case, and the juror does so for the purpose of sitting on the jury which, taken together, may 5 suggest a lack of impartiality, Colombo, 869 F.2d at the Government is aware of no case 5 The D.C. Circuit rejected a new trial claim based on juror nondisclosure in United States v. North, 910 F.2d at , where a juror failed to disclose that her brothers had been charged with and convicted of criminal conduct and that she herself had testified before the grand jury investigating a robbery allegedly committed by one of her brothers. The D. C. Circuit found: Judge Gesell [the District Court] found that a truthful answer by King [the juror] might have led either side to strike her. United States v. North, 716 F. Supp. at 655. Under McDonough, however, a valid basis for a challenge for cause, 464 U.S. at 556, 104 S.Ct. at 850, absent a showing of actual bias, is insufficient justification for 43 a mistrial. King s concealment, then, is only one factor - albeit an important one - in the critical test for actual bias. As to this broader question, the District Court found that [n]o proof was presented indicating that [she] was unfair or that she 10

16 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 16 of 36 in which a juror s concealment of prior arrests, misdemeanor convictions, or civil judgments against the juror were deemed sufficient to sustain a challenge for cause. In fact, the case law is precisely the opposite, denying new trial motions in various factual settings, including: (i) where a juror failed to disclose in response to questions posed at voir dire prior arrests and convictions, see Langford, 990 F.2d at 69-70; United States v. Ross, 263 F.3d 844, 847 (8th Cir. 2001) (juror s undisclosed brushes with law insufficient by themselves to establish that defendant could have successfully challenged juror for cause); Coughlin v. Tailhook Ass n, 112 F.3d 1052, (9th Cir. 1997) (affirming denial of new trial motion where juror concealed guilty plea to a felony marijuana use charge, several misdemeanor convictions, involvement in at least one civil proceeding, and instances of domestic violence); Green v. Vacco, 961 F. Supp. 46, 50 (W.D.N.Y. 1997) (denying new trial motion where juror failed to disclose two shoplifting arrests and guilty plea to a misdemeanor charge of welfare fraud); and United States v. Boney, 97 F. Supp. 2d 1, 6 (D.D.C. 2000) (denying new trial motion where juror lied about status as a convicted felon; court found no direct evidence of actual bias, [n]or did the overall evidence regarding the Juror s prior criminal conviction, the Juror s failure to disclose this felony conviction to the trial court, and the Juror s failed in any way to serve conscientiously. United States v. North, 716 F. Supp. at 655. While King may have felt that full disclosure would prevent her being considered for jury service... she had no desire to help or to hurt North or the prosecutor. Id. On appeal, North adduces no evidence of actual bias to call into question the District Court s findings. Although King apparently wanted to serve as a juror at North s trial, id., North offers no argument why her omissions on the questionnaire indicated that she was biased against him. 43 We do not intend to suggest that a blood relationship to a convicted felon necessarily constitutes cause for challenge to a prospective juror in an unrelated case. 910 F.2d at

17 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 17 of 36 history of concealing this conviction, constitute sufficient grounds for the court to infer the existence of actual bias and unfair prejudice in the jury deliberation process. ); and (ii) where a juror failed to disclose prior involvement by the juror or her family members in civil or criminal court proceedings and investigations by law enforcement authorities, see Stewart, 433 F.3d at 304 (denying new trial motion where juror concealed inter alia that there had been a civil judgment against him and that his son had been convicted of attempted robbery); United States v. Sylvester, 232 Fed. Appx. 303, 2007 WL (4th Cir. 2007) (denying new trial motion where juror concealed that her daughter had been convicted of a drug offense involving the same type of drug as the case to be tried); North, 910 F.2d at ; Chase Manhattan Bank v. T&N plc, No. 87 Civ (JGK), 1997 WL , at *9-11 (S.D.N.Y. Apr. 28, 1997) (no basis for challenge for cause where juror failed to disclose, among other things, various bankruptcy and other civil litigation in which she and her family members had been involved). Indeed, the Second Circuit has refused to grant new trials even where the juror concealed information far more indicative on its face of bias than prior arrests or involvement in civil litigation, including where a juror in a narcotics trial concealed at voir dire that he had been approached by a third party prior to the trial who wanted to ensure that the defendant had a sympathetic ear on the jury, Greer, 285 F.3d at 166, , and where a juror in a criminal case in the Southern District of New York failed to disclose that he was related by marriage to a federal prosecutor in the Southern District of New York, see Shaoul, 41 F.3d at 816. Neither are suspended attorneys, convicted misdemeanants, or alcoholics barred as a class from serving as jurors. Our court has consistently refused to create a set of unreasonably constricting presumptions that jurors be excused for cause due to certain occupational or other 12

18 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 18 of 36 special relationships which might bear directly or indirectly on the circumstances of a given case, where... there is no showing of actual bias or prejudice. Torres, 128 F.3d at 46 (internal quotations and citations omitted); see generally 28 U.S.C (c) ( Except as provided in section 1865 of this title or in any jury selection plan provision adopted pursuant to paragraph (5) or (6) of section 1863(b) of this title, no person or class of persons shall be disqualified, excluded, excused, or exempt from service as jurors.... ); 28 U.S.C ( It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose. ). Moreover, in deciding whether a defendant can satisfy the second prong of the McDonough test i.e., that a correct response would have resulted in a strike for cause due to bias it is irrelevant whether a party would have used a peremptory challenge to strike the juror. McDonough, 464 U.S. at 850 (rejecting argument that appellant was wrongfully deprived of peremptory challenge: it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination ); Torres, 128 F.3d at 43 ( Unlike challenges for cause, peremptory strikes are not constitutionally required ). Instead, the Court must determine whether an accurate response at voir dire would have required that the juror be excused for cause had a challenge been raised. See Shaoul, 41 F.3d at 816 ( A defendant may certainly exclude [] jurors by the use of peremptory challenges, but he has no basis for arguing that a district court is required to sustain such a challenge for cause. ). The Court must determine if it would have granted the hypothetical challenge for cause. Stewart, 433 F.3d 13

19 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 19 of 36 at 304 (quoting Greer, 285 F.3d at 171)) (the Stewart court rejected new trial motion because even if it were established that Hartridge s [the juror s] responses were false as alleged, none of the correct answers would have supported an inference that he was biased or prejudiced against Stewart and Bacanovic or had prejudged the evidence. ). Particularly significant to this case is the recognition by the Second Circuit and other courts of the nature and complexity of the verdict in assessing whether a jury rendered an impartial verdict. In rejecting a challenge based on a third-party contact with a juror during the trial, the Second Circuit in United States v. Aiello, 771 F.2d 621, 631 (2d Cir. 1985), abrogated on other grounds by Rutledge v. United States, 517 U.S. 292 (1996), observed: The accuracy of the district judge s finding about the ability of the jury to render an impartial verdict is confirmed by the care which the jury took in its deliberations; over a period of four days it requested multiple read backs of testimony and then determined that some defendants should be acquitted altogether, that others should be acquitted on some charges, and that others were guilty of all crimes charged. Similarly, the Greer court held, [A]s the District Court found, the jury s complex verdict resulting in convictions on some counts and acquittals on others demonstrated its fairness. Greer, 285 F.3d at 174 (quoting Aiello, id.) (Greer defendants convicted on some and acquitted on other of nine counts). Likewise, in a high-profile case involving the former Governor of Alabama, the Eleventh Circuit recently emphasized the fact of a split verdict in analyzing the impact of juror misconduct on the integrity of the verdict: Such a split verdict lends supports to a conclusion that the jury carefully weighed the evidence and reached a reasoned verdict free of undue influence and did not decide the case prematurely. United States v. Siegelman, 640 F.3d 1159, 1187 (11th Cir. May 10, 2011) (citing United States v. Dominguez, 226 F.3d 1235, 1248 (11th Cir. 2000); United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990)). In doing so, the Siegelman court rejected the 14

20 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 20 of 36 argument of Siegelman s co-defendant, Richard Scrushy, former CEO of HealthSouth, that the verdict was not split as to him because he was convicted of all counts. 640 F.3d at 1187 n.39 (citing United States v. Baker, 432 F.3d 1189, 1237 (11th Cir. 2005) (a split verdict is one in which the jury finds guilt as to some defendants or charges but not as to others )). Accord United States v. Morales, 2011 WL , at *18 (7th Cir. Aug. 18, 2011) (split verdict cited in upholding denial of district court s decision to deny hearing on post-trial allegation by juror of premature deliberations by jury). In sum, the case law is explicit that deliberately false statements at voir dire do not warrant a new trial absent a showing that an accurate response would have established the juror s bias sufficient to require his or her dismissal for cause. III. DISCUSSION Application of the foregoing principles mandates rejection of the Defendants new trial motion, as they have not established bias on behalf of Conrad based on the evidence before this Court. Even assuming that Conrad s answers at voir dire were demonstrably false, the Defendants nevertheless have not shown that accurate responses by Conrad would have required a finding that Conrad was biased and thus should have been dismissed for cause. On the contrary, based on the Court s observations of the jury s work in the lengthy and complex trial, as well as the split verdict rendered by the jury after a painstakingly deliberate course of deliberations, the evidence points to a lack of any bias. 15

21 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 21 of 36 A. The Split Verdict Is Compelling Evidence that the Defendants Received a Fair Trial by an Impartial Jury Conrad s vote to acquit on multiple charges is the most relevant, direct, and powerful piece of evidence that Conrad was not biased against the Defendants. Indeed, the inference that the Defendants ask this Court to draw that Conrad was biased against them is irreconcilable with Conrad s vote in the jury room. Conrad, along with her fellow jurors, participated in lengthy deliberations, after which the jury convicted on some counts and acquitted on others; found three defendants guilty on all counts; one defendant guilty on a few counts (Parse); and one defendant (Brubaker) not guilty on all counts. To claim on this record that Conrad nevertheless harbored a bias toward the Defendants is illogical. The Defendants, in their motion papers, do not even attempt to address why, if Conrad was biased, she voted to acquit Brubaker entirely, and to acquit Parse on four out of six charges. Is one to believe that Conrad was impartial as to the counts on which Parse was acquitted, but unconstitutionally biased with respect to the counts on which he was convicted? Clearly not. The far more compelling conclusion and, in fact, the only logical conclusion is that the split verdict reached by the jury reflects their impartial review and consideration of the evidence presented at trial, free of any bias towards the Defendants. This same point has been emphasized by numerous federal courts of appeal, including by the Second Circuit. Ever mindful of the need for finality of a jury s verdict and the extraordinary remedy of granting a new trial based on post-trial allegations of juror misconduct, the Second Circuit in the Aiello and Greer cases, the Eleventh Circuit in the Siegelman decision, and the Seventh Circuit last month in Morales have all cited to the juries split verdicts as proof of the fairness of those respective verdicts, and as grounds for denying defense motions for new trials. See Aiello,

22 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 22 of 36 F.2d 621at 631; Greer, 285 F.3d at 174; Siegelman, 640 F.3d at 1187; Morales, 2011 WL , at *18. As the Seventh Circuit recently stated in Morales, because the jury s verdicts in that case ran the gamut from guilty through hung to not guilty, the split verdicts impl[ied] that the jury reached independent conclusions as to each defendant without making up its mind before the close of the evidence. Morales, id. (affirming denial of new trial motion based on alleged juror misconduct, without a hearing). In other words, the fact of a split verdict can be grounds to dispose of a claim of juror misconduct. See Greer, 295 F.3d at 174 ( [A]s the District Court found, the jury s complex verdict resulting in convictions on some counts and acquittals on others demonstrated its fairness ) (internal quotations omitted); Aiello, 771 F.2d at 631 ( The accuracy of the district judge s finding about the ability of the jury to render an impartial verdict is confirmed by the care which the jury took in its deliberations; over a period of four days it requested multiple readbacks of testimony and then determined that some defendants should be acquitted altogether, that others should be acquitted on some charges, and that others were guilty of all crimes charged. ); Siegelman, 640 F.3d at 1187 ( [W]e note that the verdict in this case was split in that [the defendant] was acquitted of many of the charges. Such a split verdict lends support to a conclusion that the jury carefully weighed the evidence and reached a reasoned verdict free of undue influence and did not decide the case prematurely. ). Significantly, the Defendants do not address the fact of the split verdict in any fashion in their brief. Moreover, the cases to which the Defendants cite for support of their motion are immediately and easily distinguishable because not one of those cases involved a split verdict. Rather, unlike this 17

23 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 23 of 36 case, every case cited by the Defendants in which the courts have applied the doctrines of implied and inferred bias were single-defendant cases or cases with multiple parties but no split verdicts. 6 B. The Defendants Inference of Bias Argument Based On Conrad s False Answers At Voir Dire Is Contrary to Established Precedent, and Otherwise Unsupported by the Record The Defendants principal contention is that Conrad deliberately engaged in a pattern of lies regarding her status as a suspended attorney and her and her husband s criminal history, and that these lies, standing alone, are sufficient to infer that Conrad was biased against the Defendants. Put differently, the Defendants maintain that Conrad s intentionally false statements at voir dire are sufficient to establish not only that Conrad was motivated to lie by a desire to sit on the jury, but that such a desire also establishes a lack of impartiality amounting to a bias that must be inferred. (Def. Br. at 28). In making this argument, the Defendants rely principally on Colombo, 869 F.2d at A close reading of that case and subsequent Second Circuit cases, however, demonstrates that it does not stand for the broad proposition that the Defendants advance. Colombo involved a juror who was accused of deliberately concealing at voir dire that her brother-in-law was a government lawyer because she wished to sit as a juror on the case, and allegedly telling another juror before trial that she regarded one of the defendants alleged meeting places as a hang out for gangsters. The allegations against the juror were based on the affidavit of another juror who claimed to have learned this information from the juror accused of lying at voir dire. See id. The Second Circuit held that the juror s alleged concealment, if true, bespoke a lack 6 For example, United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992), cited by the Defendants, Def. Br. at 29, was a two-defendant case, but both defendants were convicted, so there was no split or compromise verdict. 18

24 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 24 of 36 of impartiality that would require a new trial, and remanded to the trial court for a determination of whether the juror s brother-in-law was, in fact, a government attorney. See id. 7 Contrary to the Defendants suggestion, Colombo did not announce a rule permitting a presumption of bias and partiality based solely on a juror s materially false statements at voir dire. In fact, the Second Circuit explicitly rejected this interpretation of Colombo in Langford, 990 F.2d at 68, a case in which the defendant contended as the Defendants do here that a juror s intentional concealment of prior arrests and convictions at voir dire gave rise to a presumption of bias requiring a new trial. Notwithstanding a finding that the juror in question intentionally concealed a prior arrest for larceny and prior convictions for prostitution, id. at 67, the Second Circuit in Langford explicitly rejected the defendant s argument that Colombo established that a juror s intentionally false response on voir dire is an automatic ground for a new trial. Id. at 69. [In Colombo] we did not suggest a per se rule based simply on whether a prospective juror had lied, without respect to whether the dishonesty had a bearing on her impartiality. Id. The court reasoned that such a rule would not comport with McDonough s admonition that the reviewing court consider whether the dishonesty had a bearing on [the juror s] impartiality. Id. The Langford decision thus made clear that bias can not be presumed merely because a juror lied during voir dire. It is entirely unsurprising, therefore, that the Second Circuit in Langford upheld the district court s conclusion that the juror s lies about her prior arrests and convictions did not warrant a new trial, based on the finding that the lies were motivated not by bias but by embarrassment. The court also specifically distinguished Colombo on the grounds that [t]here was 7 Despite these allegations, following remand, the Second Circuit affirmed the district court s conclusion that the juror s misstatements at voir dire did not warrant a new trial. United States v. Colombo, 909 F.2d 711 (2d Cir. 1990). 19

25 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 25 of 36 no suggestion that [the juror] had any evidentiary knowledge relating to [the defendant s] case. Nor was there any evidence that [the juror] gave false answers because of any desire to sit on the jury. Id. at If there were any doubt that the Defendants proposed presumption of bias was decisively rejected in Langford, the Second Circuit s subsequent decisions in cases such as Shaoul, Greer, and Stewart make it abundantly clear that no presumption of bias arises merely from a juror s intentionally false statements at voir dire. Instead, there must be an additional finding of juror bias. Greer, 285 F.3d at 173 (Colombo did not establish a per se rule requiring a new trial whenever an intentionally false answer is discovered.... [A]n analysis of bias is required even if the juror s erroneous response was deliberate. ); Stewart, 433 F.3d at (distinguishing Colombo and upholding denial of new trial even where juror lied, finding that correct answers at voir dire would not support inference that juror was biased against defendants); Shaoul, 41 F.3d at 816 (failure to disclose relationship with prosecutor insufficient to warrant new trial; defendant must establish deliberate lies and that for-cause challenge would have been granted). Even where a juror has lied in order to serve on a jury, courts have still required a showing of bias in order to justify the grant of a new trial. Zerka v. Green, 49 F.3d 1181 (6th Cir. 1995) (court denied motion for new trial where juror admitted he lied about his relationship with law enforcement personnel in order to get on jury, and out of embarrassment due to a stutter; court found that juror was not biased against defendant); North, 910 F.2d 843 at The cases on which the Defendants rely do not support a finding of bias in the instant case. First, those courts have granted a new trial or conducted a post-verdict evidentiary hearing only when (i) a juror or juror s family member was tied to the case or prosecuting agency, see, e.g., United 20

26 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 26 of 36 States v. Vitale, 459 F.3d 190, (2d Cir. 2006) (case remanded for an evidentiary hearing after the discovery that juror s husband had prior professional relationship with husband of one of the prosecutors on case); Conaway v. Polk, 453 F.3d at , (case remanded for evidentiary hearing where juror concealed that he was double first cousin, once removed to cooperating co-defendant); United States v. Scott, 854 F.2d 697, 698 (5th Cir. 1988) (juror concealed that his brother was deputy sheriff in office that conducted some of murder investigation of defendant, after two other jurors had been dismissed for revealing that their spouses were law enforcement officials); McCoy v. Goldston, 652 F.2d 654 (6th Cir. 1981) (evidentiary hearing granted where juror concealed that her son was completing a training program as parole officer); or, (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). In the foregoing cases, the jurors in question had backgrounds that made them especially biased against defendants facing the particular offenses they were supposed to judge or they had concealed the fact that close family members had strong ties to the prosecuting authority. Such is plainly not the case here, as the charges against the Defendants are unlike any of the charges faced by Conrad or her husband, and there is no allegation that Conrad or a family member had any relationship with any of the prosecution team or agency. 21

27 Case 1:09-cr WHP Document 487 Filed 09/09/11 Page 27 of 36 Second, courts have generally granted a new trial or even a post-verdict hearing in response to allegations of juror misconduct only when there was specific evidence that the juror in question failed to disclose information due to bias against one of the parties. Colombo, 869 F.2d at 150 (juror at issue alleged to have told another juror that she did not reveal that her brother was a government lawyer because she thought it would thwart her desire to sit on the case and stated that she knew that the locus of the defendant s crime was a hang out for gangsters ); Green v. White, 232 F.3d 671, 678 (9th Cir. 2000) (juror stated his desire to get a gun and kill the defendant himself and that he knew the defendant was guilty from the moment he saw him). Indeed, in Dyer, not only did a juror conceal her brother s murder and the lengthy criminal history of her family members, but she did so after other jurors were dismissed following revelation of relatively minor crimes. 151 F.3d at 982. Additionally, following the defendant s trial in Dyer, the juror became a prison guard on death row where the defendant was held awaiting execution, further demonstrating that she likely harbored some kind of bias against the defendant. Accordingly, in Dyer, unlike here, there was evidence that the juror at issue had taken a specific interest in the fate of the specific defendant, from which the Ninth Circuit inferred bias. Id.; but see id. at 988 (Brunetti, J., dissenting) ( The Supreme Court has never explicitly held that we may infer or presume bias based on the totality of the circumstances. We should not do so now ). Here, in contrast, the Defendants have utterly failed to present even circumstantial evidence demonstrating that Conrad failed to disclose information at voir dire in order to conceal bias against them. This failure is fatal to their claim. See Perez v. Manhattan Jeep Eagle, No. 92 CIV (DLC), 1997 WL , *5 (S.D.N.Y. 1997) ( [G]iven the uncertainty of the juror s intent, it would be inappropriate to resort immediately to the extreme remedy of granting a new trial ). 22