UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. x 20 Cr. 330 (AJN) GIIISLAINE MAXWE 'S MOTION FOR A NEW TRIAL Jeffrey S. Pagliuca Laura A. Menninger HADDON. M R AN & FOREMAN P.C. Christian R. Everdell COHEN & GRESSER LLP Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim Attorneys for Chislaine Maxwell EFTA00155901 Table of Contents Table of Contents ii Table of Authorities iv Introduction 1 Factual Background 2 I. Jury Selection. 2 A. The jury questionnaire. 2 B. Juror No. 50's questionnaire. 5 C. Juror No. 50's voir dire 6 D. The final composition of the jury. 9 II. Juror No. 50's admissions that he wasn't truthful with the Court 11 A. Juror No. 50's statements to the media. 12 1. The interview with the Independent. 12 2. The interview with the Daily Mail. 13 3. The interview with Reuters 14 4. The partial video of the interview with the Daily Mail. 14 B. Juror No. 50's social media activity. 15 C. A second juror admits to disclosing during deliberations that they were a victim of sexual assault. 21 Applicable Law 21 I. Juror No. 50's misconduct deprived Ms. Maxwell of her constitutional right to a fair trial by an impartial jury. 21 A. 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. 21 ii EFTA00155902 B. An intentionally false answer during voir dire is not a prerequisite to obtaining a new trial. 23 Argument 28 I. Ms. Maxwell is entitled to a new trial. 28 A. Juror No. 50 did not truthfully answer material questions during voir dire, including Questions 25 and 48 28 B. Had Juror No. 50 answered Questions 25 and 48 truthfully, his answers would have provided a valid basis for a challenge for cause. 29 1. Implied bias. 30 2. Inferable bias. 37 3. Actual bias. 38 C. Juror No. 50's answers to Questions 25 and 48 were intentionally false. 39 D. Had Juror No. 50 answered Questions 25 and 48 truthfully, the parties and the Court would have explored whether his other answers were false 43 E. The scope of any evidentiary hearing. 48 1. Pre-hearing discovery. 48 2. The hearing itself. 49 II. Juror No. 50 has no right to intervene. 51 A. Juror No. 50 lacks standing 51 B. This Court should refuse Juror No. 50's discovery request because Juror No. 50 is under investigation and the release of the information requested would prejudice that investigation 52 C. Juror No. 50's filings should be stricken or, alternatively, remain under seal. 53 Conclusion 56 Certificate of Service 59 iii EFTA00155903 Table of Authorities Cases Adams v. Texas, 448 U.S. 38 (1980) 28 Arizona v. Fultninante, 499 U.S. 279 (1991) 22 Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) 54 Burton v. Johnson, 948 F.2d 1150 (10th Cir. 1991) 29, 30 Clark v. United States, 289 U.S. 1 (1933) 27 Cunningham v. Shoop, F.4th 2022 WL 92594 (6th Cir. Nos. 11-3005/20-3429, Jan. 10, 2022) 50 Davis v. Bombardier Recreational Prod., Inc., No. 3:11CV236-TSL-MTP, 2012 WL 112202 (S.D. Miss. Jan. 12, 2012) 52 Dyer v. Calderon, 151 F.3d 970 (9th Cir.1998) 27, 30 Gonzales v. Thomas, 99 F.3d 978 (10th Cir. 1996) 36 Hunley v. Godinez, 975 F.2d 316 (7th Cir. 1992) 29 In re Gucci, 126 F.3d 380 (2d Cir. 1997) 52 In re Sealed Search Warrants Issued June 4 & 5, 2008, No. 08-M-208 (DRH), 2008 WL 5667021 (N.D.N.Y. July 14, 2008) 55 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) 52 Linda R.S. v. Richard D., 410 U.S. 614 (1973) 51 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) 54 Mazzeo v. Gibbons, No. 2:08-CV-01387-RLH-PA, 2010 WL 3910072 (D. Nev. Sept. 30, 2010) 53 iv EFTA00155904 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984) passim Metzger v. Hussman, 682 F. Supp. 1109 (D. Nev. 1988) 53 Murphy v. Admit- E. Jersey State Prison, No. 18-2825, 2021 WL 2822179 (3d Cir. July 7, 2021) 46 Murphy v. Nogam, No. CV 14-4268 (KM), 2018 WL 278735 (D.N.J. Jan. 3, 2018) 46 Neder v. United States, 527 U.S. 1 (1999) 28 Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) 50 Rosales-Lopez v. United States, 451 U.S. 182 (1981) 38, 45 Russell v. United States, 141 S. Ct. 2601 (2021) 47 SEC v. The Street.Com, 273 F.3d 222 (2d Cir.2001) 53 Skaggs v. Otis Elevator Co., 164 F.3d 511 (10th Cir. 1998) 29, 35 Smith v. Phillips, 455 U.S. 209 (1982) 21, 25 State v. Ashfar, 196 A.3d 93 (N.H. 2018) 33, 41 State v. Scher, 278 N.J. Super. 249, 263, 650 A.2d 1012 (App. Div. 1994) 45, 46 State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976) 46 State v. Williams, 190 N.J.Super. 111 (App. Div. 1983) 46 United States v. All Right, Title & Int. in Prop., Appurtenances, & Improvements Known as 479 Tamarind Drive, Hallendale, Fla., No. 98 CIV. 2279 DLC, 2011 WL 1045095 (S.D.N.Y. Mar. 11, 2011) 52 United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) 53 United States v. Aref, 533 F.3d 72 (2d Cir. 2008) 51 United States v. Barnes, 604 F.2d 121 (2d Cir. 1979) 22, 55 EFTA00155905 United States v. Collins, 2013 WL 4780927 (ED. Wis. 2013) United States v. Colombo, 869 F.2d 149 (2d Cir. 1989) United States v. Daugerdas, 867 F. Supp. 2d 445 (S.D.N.Y. 2012) 51 27 passim United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979) 30 United States v. French, 904 F.3d 111 (1st Cir. 2018) 47 United States v. Greer, 285 F.3d 158 (2d Cir. 2002) 36 United States v. Haynes, 398 F.2d 980 (2d Cir. 1968) 29, 38 United States v. Langford, 990 F.2d 65(2d Cir. 1993) 23, 26 United States v. Martinez-Salazar, 528 U.S. 304 (2000) 22 United States v. Nelson, 277 F.3d 164 (2d Cir. 2002) 21 United States v. Parse, 789 F.3d 83 (2d Cir. 2015) 21 United States v. RMI Co., 599 F.2d 1183 (3d Cir. 1979) 51 United States v. Sampson, 820 F. Supp. 2d 151 (D. Mass. 2011) United States v. Smith, 985 F. Supp. 2d 506 (S.D.N.Y. 2013) passim 53 United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) United States v. Stoerr, 695 F.3d 271 (3d Cir. 2012) passim 51 United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) 28, 35 United States v. Torres, 128 F.3d 38 (2d Cir. 1997) passim United States v. Wood, 299 U.S. 123 (1936) 29, 37 Wainwright v. Witt, 469 U.S. 412 (1985) 28, 43 Warth v. Seldin, 422 U.S. 490 (1975) 52 Wright v. Bernstein, 23 N.J. 284 (1957) 46 vi EFTA00155906 Constitutional Provisions U.S. Amend. VI 21, 22 Rules Fed. R. Civ. P. 12 53, 54 Fed. R. Crim. P. 24 45 Fed. R. Crim. P. 33 1, 21 Fed. R. Evid. 606(b) 49, 50 vii EFTA00155907 Ghislaine Maxwell moves under Federal Rule of Criminal Procedure 33 for a new trial. Introduction Juror No. 50 says he was a victim of sexual assault and sexual abuse as a child. When he told his fellow jurors of this abuse during deliberations, "[t]he room went dead silent." Juror No. 50 has told several media outlets that he drew on his personal experience as a victim to persuade fellow jurors to believe Ms. Maxwell's accusers, despite the inconsistencies and holes in their stories, even though they delayed disclosing their allegations against Ms. Maxwell, and in spite of expert testimony from Dr. Elizabeth Loftus casting significant doubt on the reliability of their claimed memories. This was unfair and prejudicial to Ms. Maxwell, and it all would have been avoided if Juror No. 50 had told the truth during voir dire. But he didn't. To the contrary, Juror No. 50 repeatedly and unequivocally denied having been the victim of sexual abuse, and he denied having any experience that would affect his ability to serve fairly and impartially as a juror. Had Juror No. 50 told the truth, he would have been challenged, and excluded, for cause. The Sixth Amendment to the United States Constitution guarantees trial by jury. Fundamental to that guarantee is the promise that the jury will be comprised of twelve dispassionate individuals who will fairly and impartially decide, based on the evidence or lack of evidence and not on their personal predilections and biases, whether the government has proved its case beyond a reasonable doubt. Voir dire plays an essential 1 EFTA00155908 role in this process, and it depends on potential jurors to truthfully answer material questions put to them by the Court and the parties. That did not happen here. Juror No. 50 did not truthfully respond to perhaps the most important question put to potential jurors about their personal experiences — a question that pertained directly to the core allegations against Ms. Maxwell: Whether they had been a victim of sexual assault or abuse. Juror No. 50's false answer undermined voir dire, resulted in a jury that was not fair and impartial, and deprived Ms. Maxwell of her constitutional right to trial by jury. This Court should vacate the judgment and order a new trial. Factual Background I. Jury Selection A. The jury questionnaire This Court summoned about seven hundred potential jurors, providing each of them with a 22-page questionnaire containing 50 questions. Groups of 100 or more jurors were gathered in the courthouse in morning and afternoon sessions over the course of three days. They were given as much time as needed to complete the questionnaires. Potential jurors signed the questionnaires and swore to the accuracy of their responses under penalty of perjury. The questionnaire's purpose was to provide the parties with information about potential jurors and to discern whether any potential juror could not be fair and impartial. The Court assured the parties that any affirmative answers to questions would be the subject of follow up questioning during the oral voir dire. 2 EFTA00155909 The questionnaire began with a summary of the indictment and the allegations against Ms. Maxwell, including allegations of sexual trafficking, enticement, and transportation. Given the accusations and the sensitivity of sexual assault, sexual abuse, or sexual harassment, and the powerful effects such assault, abuse, and harassment can have, the questionnaire included several questions designed to elicit whether a potential juror had ever been abused, assaulted, or harassed, and how that might affect their ability to be an unbiased fact finder. For example, Question No. 13 asked potential jurors if they could decide the case purely the evidence or lack of evidence and not based on any biases, sympathies, or prejudices. Question 25 asked potential jurors if they were ever a victim of a crime and, if so, whether that experience would prevent them from being fair and impartial. Questions 42-50 asked jurors about their feelings and experiences with the types of alleged conduct at issue in the case, including sexual assault, sexual abuse, and sexual harassment. Question 42 asked whether the nature of the allegations against Ms. Maxwell "might make it difficult" for potential jurors to be fair and impartial. Question 43 asked potential jurors if they had views about the laws concerning the age of consent and if those views would affect their ability to be fair and impartial. Question 44 asked potential jurors if they had views about the laws governing sex trafficking and sex crimes against minors and if those views would affect their ability to be fair and impartial. Question 47 3 EFTA00155910 asked potential jurors if they would have any difficulty assessing the credibility of alleged victims of sexual assault or abuse just as they would assess the credibility of any other witness. Prior to finalizing the questionnaire, Ms. Maxwell proposed specific questions to identify potential jurors who had been victims of sexual assault, sexual abuse, or sexual harassment. The defense proposed to ask potential jurors: (1) "Whether reported or not, have you, any family member or anyone close to you, including a child/minor, ever been the victim of any form of sexual abuse? (This includes actual or attempted sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family member;" and (2) "Whether reported or not, have you, or anyone close to you, including a child/minor, ever felt in danger of being sexually assaulted by another person, including a stranger, acquaintance, supervisor, teacher, or family member?" Doc. 367, p 21. The government objected to Ms. Maxwell's proposed questions. Id. The Court partially agreed with the prosecution, asking a single question about whether potential jurors had been actual victims of sexual assault, sexual abuse, or sexual harassment. Specifically, Question 48 asked: Have you or a friend or family member ever been the victim of sexual harassment, sexual abuse, or sexual assault? (This includes actual or attempted sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family member.) The questionnaire offered three answers: "Yes (self)," "Yes (friend or family member)," and "No." 4 EFTA00155911 If a potential juror selected either "yes" option, the questionnaire asked individuals to explain their answer in writing, to state whether having been a victim of sexual assault, sexual abuse, or sexual harassment would affect their ability to serve fairly and impartially, and if so, to explain why. Finally, Question 50 asked potential jurors if there was any experience that they had that might affect their ability to serve fairly and impartial as a juror. Six-hundred and ninety-four individuals answered the questionnaire. B. Juror No. 50's questionnaire Juror No. 50's questionnaire is attached as Emma 1. Under the penalty of perjury, Juror. No. 50 answered these questions as follows: • Question 13: "Yes," Juror No. 50 could decide the case solely based on the evidence or lack of evidence and not based on bias, sympathy, or prejudice. • Question 25: "No," Juror No. 50 had never been the victim of a crime. • Question 42: "No," there was nothing about the nature of the allegations against Ms. Maxwell that "might make it difficult" for Juror No. 50 to be fair and impartial. • Question 43: "No," Juror No. 50 did not have any views about laws concerning the age of consent that would affect his ability to be fair and impartial. • Question 44: "No," Juror No. 50 did not have any views about the laws governing sex trafficking and sex crimes against minors that would affect his ability to be fair and impartial. 5 EFTA00155912 • Question 47, "No," Juror No. 50 would not have any difficulty assessing the credibility of alleged victims of sexual assault or abuse just as he would assess the credibility of any other witness. • Finally, and most importantly, Juror No. 50 answered "no" when asked in Question 48 if he had ever been the victim of victim of sexual harassment, sexual abuse, or sexual assault, including actual or attempted sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family member. C. Juror No. 50's voir dire Prior to trial, defense counsel moved the Court to permit limited, attorney- conducted voir dire of potential jurors. Doc. 342. Defense counsel explained that given the nature of the allegations, the stakes involved, and the omnipresent media coverage, attorney-conducted voir dire to supplement the Court's voir dire was necessary to ensure a fair and impartial jury. Id. at 7-15. Defense counsel pointed specifically to the potential that certain jurors could not be fair if they had been a victim of sexual assault or sexual abuse. Id. at 9-10. The Court declined to permit attorney-conducted voir dire. TR 10/21/2021, p 8. Prior to trial, defense counsel also proposed that the Court individually ask each juror in person several questions including "Have you or anyone close to you ever been the victim of a crime?" and "Have you or has anyone close to you ever been the victim of a sexual crime?" Doc. 367-1 at 14. The government objected that the questions were "duplicative of questions included in the proposed voir dire" and should not be asked 6 EFTA00155913 again. Id. at 13. The defense responded in part that "asking the questions live when the jurors' reactions, hesitations, explanations can be explored by the Court and observed by the parties will aid in the selection of an impartial and fair jury." Id. The Court denied the defense's request. Juror No. 50 appeared for his voir dire on November 16. Because Juror No. 50 answered "no" to all the relevant questions about sexual abuse, sexual assault, sexual harassment and being the victim of a crime, his voir dire was very brief, spanning just seven pages of transcript. TR 11/6/2021, pp 128-34; EXHIBIT 2. The Court did not ask Juror No. 50 whether the abuse he suffered would make it difficult to be a fair and impartial juror, whether he would be biased against Ms. Maxwell, whether he could set aside any bias he might have, or whether he could fairly and impartially evaluate Ms. Maxwell's defense, which challenged, in part, the reliability of her accusers' memories. As to the questions the Court did ask (most of which addressed his personal background), 7 EFTA00155914 At the end of the very brief voir dire examination, the Court asked Juror No. 50 if he had "[a]ny doubt about [his] ability to" be fair to both sides. Id. at 134. Juror No. 50 said, "no." Id. The Court concluded: "Other than what I have asked you, do you have any reason to think that you can't be fair and impartial here?" Id. Juror No. 50 responded, "I do not." Id. The Court inquired whether the parties had any follow-up questions. Because Juror No. 50 denied any bias or inability to be fair and impartial, and because his answers to the questionnaire did not raise any red flags about his ability to serve as a fair and impartial juror in a case involving alleged sexual assault and sexual abuse, Ms. Maxwell's attorneys did not propose any follow-up questions. 8 EFTA00155915 D. The final composition of the jury Six-hundred and ninety-four potential jurors answered the 50-question questionnaire. • • 2 The parties submitted this joint list before reviewing the second round of questionnaires. 9 EFTA00155916 I0 EFTA00155917 • Of the 5 jurors seated as alternates, none disclosed on their questionnaires that they were victims of sexual abuse, sexual assault, or sexual harassment. 4 • Of the 12 deliberating jurors, none disclosed on their questionnaires that they were victims of sexual abuse, sexual assault, or sexual harassment. As we now know, however, Juror No. 50 was not telling the truth when he denied being a victim of a crime or being a victim of sexual abuse, sexual assault, or sexual harassment. And as explained below, it appears a second deliberating juror was also untruthful when they denied being a victim of sexual abuse, sexual assault, or sexual harassment. II. Juror No. 50's admissions that he wasn't truthful with the Court 4 The court originally seated 6 alternates, but one alternate became a deliberating juror when an original juror was excused due to a family commitment. None of the 18 individuals selected for service as a deliberating or alternate juror answered "yes" when asked if they were a victim of sexual abuse, sexual assault, or sexual harassment. 11 EFTA00155918 A. Juror No. 50's statements to the media 1. The interview with The Independent On January 4, 2022, less than one week after the jury returned its verdict, Lucia Osborne-Crowley of The Independent published an article based on an interview with Juror No. 50.5 Going by the name Scotty David, Juror No. 50 told Ms. Osborne-Crowley that Iglus verdict is for all the victims" and "shows that you can be found guilty no matter your status." Juror No. 50 admitted to being a victim of sexual assault and abuse, telling Ms. Osborne-Crowley that he revealed the abuse to the jury and that his story was fundamental to the jury's verdict. According to Juror No. 50, the "jury room went dead silent when he shared his story." Juror No. 50 explained to Ms. Osborne-Crowley how his own experience helped the jury come to believe the alleged victims despite the holes and inconsistencies in their stories. "I know what happened when I was sexually abused. I remember the colour of the carpet, the walls. Some of it can be replayed like a video." Relying on his own experiences, Juror No. 50 refused to credit the testimony of Dr. Elizabeth Loftus, Ms. Maxwell's expert witness on memory. None of Dr. Loftus's testimony, said Juror No. 50, "relate[d]to traumatic memory." Juror No. 50 explained all of this to the jury. Ms. Maxwell's accusers "were all believable," Juror No. 50 said. "Nothing they said felt to me like a lie." Sometimes, he said, you can misremember trivial details of a traumatic event without every doubting the core of the memory. 5 https://www.independent.co.uk/news/world/americas/maxwell-juror-account- abuse-b1986478.html 12 EFTA00155919 Juror No. 50 also explained, again based on his personal experience, why it was immaterial to him and the jury that the alleged victims did not disclose Ms. Maxwell's alleged involvement until very recently, some twenty years after the alleged abuse. "I didn't disclose my abuse until I was in high school," he said. Juror No. 50 also had an excuse for why the alleged victims in this case kept going back to Mr. Epstein and Ms. Maxwell and accepting help from them even after they had been abused. The alleged victims' conduct, explained Juror No. 50, was irrelevant to their credibility. In Juror No. 50's view, Ms. Maxwell's defense team was continually attacking the alleged victims and trying to get the jury to judge them for their decisions, as opposed to arguing that their stories were not worthy of belief. 2. The interview with the Daily Mail On January 5, the Daily Mail published an article based on its interview with Juror No. 50,6 in which he described Ms. Maxwell as a "predator." Juror No. 50 also shared that he helped other members of the jury understand things from a victim's point of view and explained how "you can't remember all the details" of traumatic memories: "there are some things that run together." When Juror No. 50 told his fellow jurors of the abuse he suffered, the room "went silent." Although he couldn't remember every detail, there were others that stuck with him: "I know what happened when I was sexually abused. I remember the color of the carpet, the walls. Some of it can be replayed like a video." Juror No. 50 said the verdict was for "all the victims." 6 https://www.dailymail .co.uk/news/article-10370193/Ghislaine-Maxwell- juror- says-evidence-convinced-panel-predator.html 13 EFTA00155920 3. The interview with Reuters The same day the Daily Mail published its article, Reuters also published a story based on an interview Juror No. 50 provided to journalist Luc Cohen.7 In the Reuters interview, Juror No. 50 elaborated about the purpose and effect of his disclosing to the jury that he was a victim of sexual assault. According to Juror No. 50, coming to a unanimous verdict "wasn't easy, to be honest." In fact, several jurors doubted the credibility of . "When I shared that [I had been sexually abused]," recounted Juror No. 50, the jurors who had doubts "were able to sort of come around on, they were able to come around on the memory aspect of the sexual abuse." 4. The partial video of the interview with the Daily Mail On January 7, the Daily Mail published a video of a portion of the interview with Juror No. 50. This video is submitted to the Court as EXHIBIT 3. The video shows the moment when the interviewer confronts Juror No. 50 about whether he disclosed to the Court and the parties that he was a victim of sexual assault. The interviewer asks whether Juror No. 50's history of being sexually abused was "something that [he'd] said yes to in the questionnaire" such that it "was something people were aware of when [he was] selected as a juror." Juror No. 50 denied being asked such a question, saying, "No, they don't ask your sexual abuse history. They didn't ask it in the questionnaire." 7 https://www.reuters.com/world/us/some-ghislaine-maxwell-jurors-initially- doubted-accusers-juror-says-2022-01-05/ 14 EFTA00155921 The interviewer challenges Juror No. 50 on this response, saying, "I thought in the questionnaire, there was a question that asked if you were a victim or if you were a friend or a relative of a victim." "Pretty sure it was number 48," the interviewer concludes. "Interesting," Juror No. 50 responds, his face turning red. The interviewer notices that Juror No. 50's face is flushing, saying, "You're not out in the sun right now [inaudible]." Juror No. 50 stumbles to respond: "No, No! I know my face is red because I can feel the blood but, I honestly—that's why I answered it that way. I don't remember it being there but. Um... I did answer, I definitely remember a family or relative or something but—being sexually abused. I was honest on all my questions." B. Juror No. 50's social media activity On January 4, after Ms. Osborne-Crawley first published her interview with Juror No. 50 quote-Tweeted a Tweet from Ms. Osborne-Crawley, linking to the interview. said: 15 EFTA00155922 Lucia Osborne-Crowley 0 • 13h WORLDWIDE EXCLUSIVE: I secured the first ever interview with a member of the jury in the #GhislaineMaxwellTrial. I'm so grateful to Scotty for talking to me about why... Show this thread 8 43 c) 162 A short time later, Juror No. 50 "liked" 's Tweet. Juror No. 50 then Tweeted directly to in response: 16 EFTA00155923 Q o:o Scotty David 1 Twee: 39 Following 1 Follower Not followed by anyone you're foilowing Tweets Tweets & replies Media Likes 41. Lucia Osborne -Crowley 0 • 13h WORLDWIDE EXCLUSIVE: I secured the first ever interview with a member of the jury in the #GhislaineMaxwellTrial. I'm so grateful to Scotty for talking to me about why... Show this thread Q 9n 43 (7 161 t-J itScotty David @ScottyDavidNYC • 4h Thanks for being brave enough to stand up and share your experience. Your story was critical in how we reached our verdict in that jury room. Thanks for sharing my story G Juror No. 50 also "liked" Ms. Osborne-Crawley's Tweet linking to his interview. At the time Juror No. 50 Tweeted to his Twitter handle was the same name he used in his press interviews: "@ScottyDavidNYC." 17 EFTA00155924 Shortly after Tweeting Follow ) Scotty David @ScottyDavidNYC ® Manhattan, NY ll Joined April 2021 39 Following 1 Follower Not followed by anyone you're following Tweets Tweets & replies Media Likes a Lucia Osborne-Crowley 0 • 13h WORLDWIDE EXCLUSIVE: I secured the first ever interview with a member of the jury in the #GhislaineMaxwellTrial. I'm so grateful to Scotty for talking to me about why... Show this thread 0 9 tj, 43 (2 161 0' Qcco however, Juror No. 50 changed his Twitter handle to "@NycSsddd." He also attempted to delete his Tweet to 18 EFTA00155925 9:31 4 4 Outlook Tweet S @NycSsddd Replying to @anniefarmer Thanks for being brave enough to stand up and share your experience. Your story was critical in how we reached our verdict in that jury room. Thanks for sharing my story 4:07 PM • 1/4/22 • Twitter for Phone 1 Retweet 3 Likes This Tweet has been deleted. Juror No. 50 did not "unlike' tweet, or the Tweet by Ms. Osborne- Crawley linking to his interview. In early January, Juror No. 50 also posted about his jury service on his Instagram account, 19 EFTA00155926 8:00+ thicbrartravels Posts al o 590 likes thisbeartravels I can now tell everyone that I was a pure; on the Ghistaint Maxwell trial Been an int r edibie surreal experience and an thisbear trent Stutter gram the state does not one; into spy. unfortunately But a therapist regularly so have had some help dealing wdh the stress from that case nicolidcornes We thank you from around the world for your brilliant service 00 thisbeartrants 364 987 825 Post. f Stirs Following Scotty David Ira/Wong around the world a• much as I can Following - Message 4 W • • Shortly thereafter, Juror No. 50 predictably deleted his Twitter account and his Instagram account. He also appears to have deleted his Facebook and LinkedIn accounts. 20 EFTA00155927 C. A second juror admits to disclosing during deliberations that they were a victim of sexual assault During his press tour, Juror No. 50 revealed in interviews that he was not alone in revealing to jurors that he was a victim of sexual assault, describing to reporter that a second juror also disclosed that they were a victim of sexual abuse.8 On January 5, the New York Times published an article confirming Juror No. 50's statement, reporting that "a second juror described in an interview .. . having been sexually abused as a child.s9 "This juror, who requested anonymity, said that they, too, had discussed the experience during deliberations and that the revelation had appeared to help shape the jury's discussions." To date, this juror has not publicly revealed their identity, and Ms. Maxwell does not know who it is.19 Applicable Law I. Juror No. 50's misconduct deprived Ms. Maxwell of her constitutional right to a fair trial by an impartial jury. A. A party alleging unfairness based on undisclosed juror bias must demonstrate first, that the juror's voir dire response was false and 8 https://www.dailymail.co.uk/news/article-10379445/Ghislaine-Maxwells- lawyers-fought-ask-jurors-detailed-questions-sexual-abuse.html ° https://www.nytimes.com/2022/01/05/nyregion/maxwell-trial-jury-inquiry.html 10 21 EFTA00155928 second, that the correct response would have provided a valid basis for a challenge for cause. Federal Rule of Criminal Procedure 33 provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). The Sixth Amendment guarantees a criminal defendant the right to a trial by an impartial jury. U.S. Const. amend. VI. In McDonough Power Equipment, Inc. v. Greenwood, the Supreme Court recognized that "[o]ne touchstone of a fair trial is an impartial trier of fact—`a jury capable and willing to decide the case solely on the evidence before it."' 464 U.S. 548, 554 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). "The right to trial before an impartial trier of fact—be it a jury or a judge— therefore implicates Due Process as well as Sixth Amendment rights." United States v. Nelson, 277 F.3d 164, 201 (2d Cir. 2002). In turn, "Ivkir dire plays an essential role in protecting the right to trial by an impartial jury." United States v. Daugerdas, 867 F. Supp. 2d 445, 468 (S.D.N.Y. 2012) (granting new trial to three defendants based on juror dishonesty during voir dire and concluding one defendant, Parse, waived his new trial motion), vacated and remanded sub nom. United States v. Parse, 789 F.3d 83 (2d Cir. 2015) (reversing district court's conclusion that the defendant Parse waived his new trial motion). It is bedrock constitutional law that defendants have a right to "a full and fair opportunity to expose bias or prejudice on the part of veniremen" and that "there must be sufficient information elicited on voir dire to permit a defendant to intelligently exercise not only his challenges 22 EFTA00155929 for cause, but also his peremptory challenges." United States v. Barnes, 604 F.2d 121, 139 (2d Cir. 1979) (internal quotations and citations omitted). "A juror's dishonesty during voir dire undermines a defendant's right to a fair trial." Daugerdas, 867 F. Supp. 2d at 468; U.S. Const. amend. VI. "[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." United States v. Stewart, 433 F.3d 273, 303 (2d Cir. 2006) (citing McDonough, 464 U.S. at 556). A defendant need not demonstrate prejudice when a juror gives a false answer to a material question during voir dire if the juror would have been subject to a challenge for cause if he had answered honestly. See United States v. Martinez -Salazar, 528 U.S. 304, 316 (2000) (the "seating of any juror who should have been dismissed for cause" "would require reversal"). When a biased juror deliberates on a jury, structural error occurs, and a new trial is required without a showing of actual prejudice. See Arizona v. Fulminante, 499 U.S. 279, 307-10 (1991). B. An intentionally false answer during voir dire is not a prerequisite to obtaining a new trial. "Intentionally false" juror answers are not a prerequisite to a finding that a defendant's constitutional right to a fair and impartial jury have been violated. McDonough, 464 U.S. at 553-56; id. at 556-57 (Blackmun, J., concurring); id. at 557-59 (Brennan, J., concurring in judgment). So long as a truthful answer would have subjected the juror to a challenge for cause based on bias, an inadvertent false answer is just as 23 EFTA00155930 invidious as an intentionally false answer. United States v. Langford, 990 F.2d 65, 68 (2d Cir. 1993)." As the Second Circuit held in Langford: We read [McDonough] multi-part test as governing not only inadvertent nondisclosures but also nondisclosures or misstatements that were deliberate, for though the McDonough Court began with the inadvertent response before it, it stated that the further showing of cause must be made even after a juror's "failure to answer honestly," and it hypothesized that there could be various "motives for concealing." Concurring in the 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. Langford, 990 F.2d at 68 (quoting McDonough, 464 U.S. at 557-58 (Brennan, J., concurring in judgment)). The seminal case addressing a juror's false answers during voir dire is McDonough Power Equipment, Inc. v. Greenwood. McDonough was a products liability action in which Juror Payton remained silent when the district court asked, "how many of you [potential jurors] have yourself or any members of your immediate family sustained any severe injury [in] an accident at home, or on the farm or at work that result in any disability or prolonged pain and suffering?" 464 U.S. at 550. After trial, it was discovered This caselaw uses "deliberate" and "intentional" interchangeably. 24 EFTA00155931 that Juror Payton's son had been injured in an explosion of a fire truck. Id. at 551. The district court denied a motion for a new trial without holding a hearing. Id. The court of appeals reversed, ordering a new trial instead of remanding for a hearing. Id. at 551-52. The court of appeals held that if "an average prospective juror would have disclosed the information, and that information would have been significant and cogent evidence of the juror's probable bias, a new trial is required to rectify the failure to disclose it." Id. at 552. "Good faith," said the court, was "irrelevant to the inquiry." Id. The Supreme Court reversed the court of appeals, concluding that it employed the wrong standard and erred in reaching the merits instead of remanding the case to the district court for an evidentiary hearing. Id. at 556. As for the correct legal standard, the Court said that to obtain a new trial in such a situation, 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. The Court remanded to the court of appeals to consider any outstanding issues and, assuming the judgment wasn't reversed for other reasons, to remand to the district court for an evidentiary hearing applying the new legal standard. Id. The court emphasized that "Moir dire examination serves to protect [the fair trial] right by exposing possible biases, both known and unknown, on the part of potential jurors" and that the "necessity of truthful answers by prospective jurors if [voir dire] is to serve its purpose is obvious." Id. at 554. The Court did not expressly disavow the court of 25 EFTA00155932 appeals' statement that the good faith of a potential juror was "irrelevant" to the inquiry. Id. at 553-56. There were two concurring opinions in McDonough, joined by a total of five justices, which make clear that an intentionally false answer is not a prerequisite to obtaining a new trial. Writing for himself and Justices Stevens and O'Connor, Justice Blackmun said: I agree with the Court that the proper inquiry in this case is whether the defendant had the benefit of an impartial trier of fact. I also agree that, in most cases, the honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial. I therefore join the Court's opinion, but I write separately to state that I understand the Court's holding not to foreclose the normal avenue of relief available to a party who is asserting that he did not have the benefit of an impartial jury. Thus, regardless of whether a juror's answer is honest or dishonest, it remains within a trial court's option, in determining whether a jury was biased, to order a post-trial hearing at which the movant has the opportunity to demonstrate actual bias or, in exceptional circumstances, that the facts are such that bias is to be inferred. See Smith v. Phillips, 455 U.S. 209, 215-16 (O'Connor, J., concurring). Id. at 556-57 (Blackmun, J., concurring (emphasis added)). This was the entirety of Justice Blackmun's dissent. Id. For his part, Justice Brennan joined by Justice Marshall recognized that "the bias of a juror will rarely be admitted by the juror himself, 'partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.'" Id. at 558 (Brennan, J., concurring in judgment) (quoting majority opinion). "Necessarily," then, Justice Brennan explained, bias "must be inferred from surrounding facts and circumstances." Id. "Whether the juror answered a particular question on voir dire honestly or dishonestly, or whether an inaccurate answer was inadvertent or 26 EFTA00155933 intentional, are simply factors to be considered in this latter determination of actual bias." Id. "One easily can imagine cases in which a prospective juror provides what he subjectively believes to be an honest answer, yet that same answer is objectively incorrect and therefore suggests that the individual would be a biased juror in the particular case." Id. at 559. The Second Circuit adopted this reading of McDonough, endorsing the view expressed by Justice Brennan (and shared by Justice Blackmun) that an intentionally false answer is not a prerequisite to obtaining a new trial. United States v. Langford, 990 F.2d 65, 68 (2d Cir. 1993) ("We read this multi-part test as governing not only inadvertent nondisclosures but also nondisclosures or misstatements that were deliberate."); id. at 68 (adopting Justice Brennan's reasoning). Accordingly, in the Second Circuit, "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." United States v. Stewart, 433 F.3d 273, 303 (2d Cir. 2006). Of course, individuals cannot be allowed to lie their way onto a jury. Writing for a unanimous Supreme Court, Justice Cardozo concluded: "If the answers to the questions [during voir dire] are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only . . . His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham." Clark v. United States, 289 U.S. 1, 11 (1933). "[A] juror who lies [his] way onto a jury is not really a juror at all; []he is an interloper akin `to a stranger who sneaks into the jury room.' Daugerdas, 867 F. Supp. 27 EFTA00155934 2d at 468 (quoting Dyer v. Calderon, 151 F.3d 970, 983 (9th Cir.1998) (en banc)). "[C]ourts cannot administer justice in circumstances in which a juror can commit a federal crime in order to serve as a juror in a criminal case and do so with no fear of sanction so long as a conviction results." United States v. Colombo, 869 F.2d 149, 152 (2d Cir. 1989). Argument I. Ms. Maxwell is entitled to a new trial. This Court must order a new trial if Ms. Maxwell can make two showings: First, that Juror No. 50's voir dire response was false and second, that the correct response would have provided a valid basis for a challenge for cause. Stewart, 433 F.3d at 303. Even without an evidentiary hearing, Ms. Maxwell has made that showing here. A. Juror No. 50 did not truthfully answer material questions during voir dire, including Questions 25 and 48. There is no reasonable dispute that Juror No. 50's voir dire responses were false. Juror No. 50 has told several media outlets that he was a victim of sexual assault and sexual abuse as a child. Necessarily, then, Juror No. 50 did not provide truthful answers when he denied being the victim of a crime (Question 25) or being a victim of sexual harassment, sexual abuse, or sexual assault (Question 48). And because being a victim of sexual assault or sexual abuse is material to an individual's ability to serve as a fair and impartial juror in a case about sexual assault and sexual abuse, Ms. Maxwell has satisfied the first prong of the McDonough test. See United States v. Sampson, 820 F. Supp. 2d 151, 172 (D. Mass. 2011) ("[A] matter is 28 EFTA00155935 material if it has a natural tendency to influence, or be capable of influencing, the judge who must decide whether to excuse a juror for cause." (citing Neder v. United States, 527 U.S. 1, 16 (1999) (giving general definition of materiality))). B. Had Juror No. 50 answered Questions 25 and 48 truthfully, his answers would have provided a valid basis for a challenge for cause. The second question is whether truthful responses from Juror No. 50 would have provided a valid basis for a challenge for cause. See Stewart, 433 F.3d at 303. "[T]he test is not whether the true facts would compel the Court to remove a juror for cause, but rather whether a truthful response `would have provided a valid basis for a challenge for cause.' Daugerdas, 867 F. Supp. 2d at 470 (quoting McDonough, 464 U.S. at 556). "An impartial jury is one in which every juror is `capable and willing to decide the case solely on the evidence before [him].' Id. (quoting McDonough, 464 U.S. at 554). "Jurors are instructed that they are to decide the question of a defendant's guilt based solely on the evidence presented." Id. (citing United States v. Thomas, 116 F.3d 606, 616- 17 n.10 (2d Cir. 1997). A juror is biased—i.e., not impartial —if his experiences "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)); see also United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (juror who structured financial transactions properly excused for cause in case involving structuring of cash deposits). 29 EFTA00155936 Challenges for cause can be based on implied bias, inferable bias, or actual basis. See Torres, 128 F.3d at 43; see also Sampson, 820 F. Supp. 2d at 162-67 (discussing at length each type of bias). 1. Implied bias "Implied or presumed bias is `bias conclusively presumed as a matter of law.' Torres, 128 F.3d at 45 (quoting Wood, 299 U.S. at 133). "It is attributed to a prospective juror regardless of actual partiality." Id. "In contrast to the inquiry for actual bias, which focuses on whether the record at voir dire supports a finding that the juror was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced." Id. (citing Haynes, 398 F.2d at 984). "And in determining whether a prospective juror is impliedly biased, `his statements upon voir dire [about his ability to be impartial] are totally irrelevant." Id. (quoting Haynes, 398 F.2d at 984). As is relevant here, there are two ways in which courts imply bias. First, "[c]ourts imply bias `when there are similarities between the personal experiences of the juror and the issues being litigated.' Daugerdas, 867 F. Supp. 2d at 472 (quoting Sampson, 820 F. Supp. 2d at 163-64); see also Skaggs v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir. 1998) (collecting cases where bias was implied based on the juror's experiences); see, e.g., Hunley v. Godinez, 975 F.2d 316, 319-20 (7th Cir. 1992) (holding, in a case charging murder in the course of a burglary, that bias should be implied where two jurors were the victims of similar burglaries during deliberations); Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir. 1991) (holding, in murder case in which the defendant presented a 30 EFTA00155937 defense based on having suffered domestic violence at the hands of the victim, that a juror living in similarly abusive circumstances at the time of trial, and who gave dishonest answers regarding that subject at voir dire, was impliedly biased); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979) (per curiam) (implying bias where, in a trial for participation in a heroin distribution conspiracy, a juror failed to disclose at voir dire that he had two sons who were serving long prison sentences for heroin-related crimes). Second, courts imply bias when "repeated lies in voir dire imply that the juror concealed material facts in order to secure a spot on the particular jury." Daugerdas, 867 F. Supp. 2d at 472 (quotation omitted). "A juror . .. who lies materially and repeatedly in response to legitimate inquiries about her background introduces destructive uncertainties into the process." Dyer, 151 F.3d at 983. Under both theories, Juror No. 50 was impliedly biased. First, bias should be implied because this is a case in which "there are similarities between the personal experiences of the juror and the issues being litigated." Daugerdas, 867 F. Supp. 2d at 472. "When a juror has life experiences that correspond with evidence presented during the trial, that congruence raises obvious concerns about the juror's possible bias." Sampson v. United States, 724 F.3d 150, 167 (1st Cir. 2013) (citing Torres, 128 F.3d at 47-48; Burton, 948 F.2d at 1158-59). "In such a situation, the juror may have enormous difficulty separating her own life experiences from evidence in the case." Id. The First Circuit has commented, for example, that "it would be natural for a juror who had been 31 EFTA00155938 the victim of a home invasion to harbor bias against a defendant accused of such a crime." Id. The same is true here: "It would be natural for a juror who had been the victim of [sexual assault and sexual abuse] to harbor bias against a defendant accused of such a crime." See id. Like Jane, Carolyn, Kate, an' Juror No. 50 claims to be a victim of child sexual abuse. Like Jane, Carolyn, Kate, and Juror No. 50 delayed disclosing the abuse he suffered. Like Jane, Carolyn, Kate, and Juror No. 50 says the memories of the abuse he suffered can be "replayed like a video." And like Jane, who described Mr. Epstein's New York apartment and said it had a "red mood," TR at 320, Juror No. 50 says he can remember the "color of the carpet, [of] the walls" in the room where he was abused. These similarities are profound because they bear on the principal argument Ms. Maxwell made against her accusers' claimed memories: They were corrupted and unreliable. Juror No. 50's claim that the memory of his abuse can be "replayed like a video" is perhaps most significant, because it directly contradicts Dr. Loftus's expert testimony: Q. Memory has been termed a constructive process; correct? A. Yes. Q. Could you explain what that means to the jury. A. What we mean by that is as I testified earlier, we don't just record events and play it back later like a recording device would work, like a video machine, but rather, we are actually constructing our memories when we retrieve memories. We often take bits and pieces of experience sometimes 32 EFTA00155939 that occurred at different times and places, bring it together, and construct what feels like a recollection. TR at 2427. Given Juror No. 50's personal experience and belief about memory and its reliability, there was no way he could fairly evaluate Ms. Maxwell's challenge to the credibility of her accusers' memories or the expert testimony of Dr. Loftus.I2 Several decisions support this conclusion. In Sampson v. United States, for example, the First Circuit affirmed the district court's decision to order a new penalty- phase hearing in a death penalty case after a juror falsely denied, among other things, having been a v