United States v. Nix (275 F. Supp. 3d 420, 2017)

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

L INTRODUCTION

Defendants. Matthew Nix (“Nix”) and Earl McCoy (“McCoy”) (collectively, “Defendants”) were charged in a Third Superseding Indictment returned on January 5, 2017, with 12 counts alleging violations of the Hobbs Act,. 18 U.S.C.,§ 1951(a), and related firearms and narcotics charges, all in connection with a spree of violent home invasions during 2014. (Dkt. 165). Trial commenced on February 13, 2017, and concluded on March 17, 2017, with the jury convicting Defendants on all 12 counts. (Dkt. 229; Dkt. 266; Dkt. 267). Sentencing is presently scheduled for September 8, 2017. (Dkt. 350).

Nix and McCoy aggressively defended the case before and during trial, and the intensity of that defense only continued after the jury returned its verdict. Defendants’ post-verdict activities spawned further hearings, appearances, and motion practice, with Defendants attacking various aspects of the trial, from the jury selection to the jury instructions. Among ■the issues raised by Defendants was that one of the jurors in this case—” Juror No. 3” —was a convicted' felón who failed to disclose his criminal history during jury selection. Juror No. 3’s felon status was not discovered until, post-verdict, counsel for Nix uncovered this information based on a “hunch.” (Dkt. 327 at 6-9). Arguing that Juror No. 3’s felon status tainted the impartiality of the jury, Defendants have filed motions pursuant to Fed. R. Crim. P. 33 seeking a new trial. (Dkt. 286; Dkt. 289).

Defendants had a fundamental constitutional right to a fair trial, and this Court is responsible for ensuring that they were afforded that right. Central to that right is the Sixth Amendment’s guarantee to a trial by an impartial jury. See also United States v. Nelson, 277 F.3d 164, 206 (2d Cir. 2002) (“[Qjuite apart from offending the Sixth Amendment, trying an accused before a jury that is actually biased violates even the most minimal standards of due process.”). “An impartial jury is one in which all of its members, not just most of them, are free of interest and bias.” United States v. Parse, 789 F.3d 83, 111 (2d Cir. 2015).

However, in the words of the Supreme Court, Defendants were “entitled to a fair trial but not a perfect one, for there are no perfect trials.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (internal quotation marks and citation omitted). In other words, although Defendants were unquestionably entitled to an impartial jury, they may not, post-verdict, challenge the selection of jurors who, in hindsight and with additional information, Defendants wished had not been selected. After a thorough consideration of the evidence and the parties’ arguments, the Court concludes that the presence of Juror No. 3 did not destroy the impartiality of the jury in this case. Juror No. 3, a convicted felon who was not qualified to serve, admittedly blundered his way onto the jury—but he did not smuggle his way onto the jury through intentional deceit. As a result, Defendants are not entitled to a new trial, and, for the reasons discussed below, the motions pursuant to Fed. R. Crim. P. 33 (Dkt. 286; Dkt. 289) based upon Juror No. 3’s alleged bias are denied.

II. BACKGROUND

A. Jury Selection—February 13, 2017

Jury selection occurred on February 13, 2017. (See Dkt. 328). From a venire of 83, the Court sat a panel of 36 prospective jurors for the proposed 16-member jury (12 jurors and 4 alternates). Prospective jurors were excused for cause and replaced from the venire as the Court questioned the panel of prospective jurors. Each prospective juror had completed a questionnaire mailed to him or her in advance by the Clerk’s Office. The question-nafre asked, among other things, for information about prior felony convictions.

Juror No. 3, an African American male, was the sixth prospective juror called by the Court’s deputy clerk, and he was seated in the sixth seat of the panel of 36. (Id. at 29). After all prospective jurors were placed under oath (id. at 30), the Court proceeded to ask questions of the panel.

Juror No. 3 responded to the Court’s questions shortly after the questioning began, when the Court questioned the prospective jurors about their availability .to sit for the trial that was estimated to last five weeks:

JUROR NO. 3: Hello, my name is [J.B.]. I’m self employed.

THE COURT: What do you do [J.B.]?

JUROR NO. 3: I have my own cleaning business. Right now it’s covered because I’m working at night. I don’t know if I can do that for five weeks.

THE COURT: You tell me what you would be able to do.

JUROR NO. 3: I don’t know. I have contracted and these people rely on me to clean the businesses.

THE COURT: Do you typically clean during the day[?]

JUROR NO. 3: No, at nighttime. And I have a couple of contracts during the daytime, too.

THE COURT: Only you know whether or not you can manage it. We’re going to be in session typically from 9 to 1. You would have the afternoons, typically, would be free and there would be some days where we’ll be going full days. Obviously we’re not meeting on the weekends. You tell me whether or not you think you could do it.

JUROR NO. 3: I have a contract that gets Tuesday and Friday morning. I don’t know if she will allow me not to do it for five weeks.

THE COURT: During the break, would you be able to contact the person.

JUROR NO. 3: Not really, I don’t have my phone. It’s in the car.

THE COURT: If during the lunch break—

JUROR NO. 3: Yes.

THE COURT: We’ll have about an hour lunch break, would you be able to make a call to see if it would work.

JUROR NO. 3: Yes.

(Id. at 40-42).

After the first break, Juror No. 3 revealed that he had been able to “switch everything around” and, therefore, he would be able to serve if selected. (Id. at 86-87). Juror No. 3 did not speak for the rest of the day in response to the Court’s voir dire questions, until the Court asked for biographical information from each juror at the end of the voir dire. (See id. at 245). As a result, Juror No. 3 did not respond to any of the following questions that were asked-of the entire panel:

(1) “Has anyone ever been the- victim of a home robbery?” (id. at 97);

(2) “Has anyone ever served on a jury before?” (id. at 206);

(3) “Has anyone ever been a defendant in a criminal case?” (id, at. 214);

(4) “Has anyone ever visited a jail or correctional facility other than in connection with .., your educational curriculum” (id. at 229);

(6) “Has anyone had anyone close to ■ them, other than what we already discussed, I know we covered this, anyone close to them convicted of a crime?” (id. at 239).

Similarly, Juror No. 3 did not offer any information in response to the Court’s “catch-all” questions asked toward the end of voir dire: whether there was “anything in fairness to both sides that you think we should know that we haven’t covered already” (id. at 221), and “[i]s there anything that you think we should know that we haven’t covered up to this point?” (id. at 267).

Juror No. 3 was one of two African American males seated in the panel of 36 prospective jurors-. Like Juror No. 3, prospective juror “T.P.” was also called by the Court’s deputy clerk during, the initial seating. (Id. at 30). T.P was seated in .seat 26 of the panel of 36. (Id.). And like Juror No. 3, T.P. remained quiet throughout much of the voir dire until the Court asked, each prospective juror at the end of jury selection to provide biographical information. (See, id. at 262). Also like Juror No, 3, T.P. was a convicted felon and failed to disclose that information either when completing the questionnaire mailed by the Clerk’s Office or in response to the Court’s voir dire questions. (See Court Ex. 3A). However, unlike Juror No. 3, T.P.’s felón status was discovered during jury selection when, prior to exercising peremptory challenges, the Government disclosed that it had run a background check on T.P. and discovered his undisclosed criminal history. (Dkt. 328 at 269-75; see also Court Ex. 3B; Court Ex. 3C).

When the Government brought to the attention of the Court and defense counsel its discovery of T.P.’s criminal history, counsel for McCoy accused the Government of targeting the racial minorities on the jury, (Dkt. 328 at 270 (“I’m concerned if an African American comes in and the FBI is running record checks on him, they probably did that with the other one, too.”)). The Government denied defense counsel’s accusations, and ultimately the issue was resolved with the Government agreeing to use one of its peremptory challenges to strike T.P. (Id. at 270-75).

As it turns out, the Government had not run a background check on any other prospective juror, including Juror No. 3 (Dkt. 308 at ¶ 3(A)), and Juror No. 3’s criminal history was not discovered until after the return of the verdict. One of the issues Nix raises in his post-verdict motion is the Government’s background check on T.P. (Dkt. 289 at ¶ ¶83-84). Thus, Defendants seek a new trial both because an African American prospective juror who failed to disclose his criminal history was excused from the jury, and because an African American prospective juror who failed to disclose his criminal history was not excused from the jury.

B. Discovery of Juror No. S’s Felon Status

Post-verdict, Defendants filed motions pursuant to Fed. R. Crim. P. 29(c) and 33 raising a number of issues, including the discovery that Juror No. 3 may be a convicted felon. (Dkt. 286-1 at ¶¶8-22; Dkt. 289 at ¶¶ 36-50). The Government filed papers in opposition to the motions, and, among other things, indicated that it was unaware of Juror No. 3’s felon status until the issue was raised in Defendants’ post-trial filings. (Dkt. 296 at 5-11). Defendants filed reply papers (Dkt. 299; Dkt. 300), and, due to the competing allegations about the background checks on the jurors in the case, the Court directed each counsel to disclose, by affidavit, .information about any background checks conducted on jurors or prospective jurors. (Dkt. 302), Counsel for each party filed affidavits (Dkt. 306; Dkt. .3.08; Dkt. 309), and a hearing was conducted on May 15, 2017 (see Dkt. 327).

At the appearance on May 15, 2017, counsel for Nix indicated that he performed the criminal background check post-verdict on Juror No. 3 based on “a hunch/’ (Id. at 6-9). The Court determined that it would hold an evidentiary hearing concerning Juror No. 3 (id. at 25-27), and the Court scheduled a further appearance for May 25,- 2017’ (id. at 28-29). At the Court’s direction, the United States Marshals Service served Juror No. 3 with "an Order directing his appearance on May 25, 2017. (Dkt. 315; Dkt. 317).

On May 25, 2017, Juror No. 3 appeared in Court, was advised of his rights, and, at his request, counsel was appointed to represent him. (Dkt. 329 at 5-7). The Court set a date to conduct an evidentiary hearing: June 12, 2017. (Id. at 11). The Court also heard argument from counsel on the scope of the hearing, and it reserved decision on whether it would allow counsel to question Juror No. 3, indicating that the Court was going to initiate the questions and any questions that the parties wanted asked needed to be submitted to the Court in advance. (Id. at 37-41; see, e.g., Dkt. 312). On June 9, 2017, the U.S. Attor-nejfs Office provided an immunity letter to Juror No. 3. (See Dkt. 358 at 70).

C. The Evidentiary Hearing

The evidentiary hearing commenced on June 12, 2017, and continued on June 14, 2017 (Dkt. 358; Dkt. 359). Only the Court asked questions on the-first day of the hearing, but counsel were permitted to ask questions during the second day of the hearing. (See Dkt. 358; Dkt. 359).

Juror, No. 3, a 47-year-old African American male (see Dkt. 358 at 76; see, e.g., Court Ex. 14), testified that he did not have a high school diploma or G.E.D., but had been educated up until the 11th grade (Dkt. 358 at 71). He has five children (id. at 71-72) and is self-employed as a cleaner (id. at 71; see,, e.g., Court Ex. 14). He described his marital status as single (Dkt. 358 at 72), although when questioned further about his marital ■ status, it was revealed that he is separated but not legally divorced (id. at 94-95).

Juror No. 3 acknowledged that he completed the Court’s juror questionnaire online (id. at 73), and he inaccurately answered “No” in response to Question No. 6, which asked: “Have you ever been convicted either by your guilty or nolo conten-dere plea or by a court or jury trial, of a state or federal crime for which punishment could have been more than one year in prison?” (id. at 74; see Court Ex. 14; Court Ex. 15).

Juror No. 3 explained his reasoning for answering inaccurately as follows: “At the time, I thought that it meant 21 and over.” (Dkt. 358 at 74). Juror No. 3 offered a similar explanation as to why he had not offered this information during the Court’s questions during voir dire (id. at 86-88), but he acknowledged that his answers were not accurate:

Q But I never said 21 and up, did I?

A No, you did not.

Q And the questionnaire didn’t say 21 and up, did it?

A No, it did not.

Q And as you sit here now, would you agree with me that you did not answer those questions truthfully? :

A Yes.

(Id. at 89).

While admitting that he had been convicted of at least one felony, Juror No. 3 displayed a hazy memory concerning the number of prior felony convictions and arrests.

Q Can you tell me how many crimes punishable by more than one year in prison or felonies have you been convicted of?

A Truthfully, I don’t remember, your Honor.

(Id. at 75). Juror No. 3 did offer that he could recall being convicted of a felony where he “was accused of breaking into a clothing store” when he was 17 or 18 years old. (Id. at 76). He testified that he was sentenced to two to four years in prison, but that sentence was satisfied by serving six months in “shock camp.” (Id. at 78). However, Juror No. 3 did not recall several facts surrounding this conviction, such as: if the charge was resolved through a plea or trial (id. at 76); where the shock camp was located (id. at 78); the name of one of his co-defendants (id. at 77); if he was prosecuted in federal or state court (id. at 79); and the name of the judge who sentenced him (id.).

Initially, Juror No. 3 testified that he did not know if he had been convicted of any other felonies other than the one involving the clothing store:

Q Other than that felony conviction [involving the burglary of the clothing store], do you know if you were convicted of any other prior felonies?

A No, I don’t.

(Id. at 80). He testified that he had been arrested, although the only arrest that he was initially able to recall involved a stolen car when he was 17 or 18 years old, and he testified that he could not recall how it was resolved. (Id.). However, later during the first day of the hearing, Juror No. 3 testified that he was convicted of the incident involving the stolen car:

Q How did the—I may have asked you this, I’m not sure—how did the stolen motor vehicle charge get resolved?

A I’m not sure.

Q In other words, do you know if you were convicted or not?

A Yes.

Q You were convicted?

A Yes.

Q But you don’t know if you were convicted by a plea or by a trial?

A No, I don’t.

Q And as you sit here now, you don’t know if you served—you don’t recall serving any time for that conviction—

A No, I—

Q—is that fair to state?

A Yes, your Honor.

(Id. at 87-88).

Juror No. 3 testified that he was falsely accused of both the clothing store burglary and the stolen car crime:

Q So, you were falsely accused of this crime [involving the clothing store burglary]?

A Yes.

(Id. at 79).

Q And if I understand correctly, you did not actually engage in the burglary of the clothing store, correct?

A Yes.

Q What about the stolen vehicle, did you actually steal a vehicle?

A No.

(Id. at 84-85). However, during the second day of the hearing, when confronted with his signed confession about the burglary of the clothing store, Juror No. 3 ultimately admitted his involvement and that he provided the Court false testimony on the subject. (Dkt. 359 at' 181-84). When the Court confronted him about why he failed to testify accurately, Juror No. 3 had no explanation:

Q So, why did you not answer my question accurately when I first asked it of you?

A Don’t know.

Q You don’t know?

A No.

Q Isn’t it fair to state that you’d prefer not to be honest about your prior criminal history?

A Truthfully, I don’t think about my prior history,1 to tell you the truth. I don’t think about it.

Q Well, we’re here on it right now.

A Yes, we are.

Q So we’re talking about it right now. Isn’t it fair to state that you’d prefer not to be honest about your prior criminal history?

A No.

(Id. at 183; see id. at 231 (admitting that Juror No. 3 provided false testimony during first day of the hearing about his involvement in the clothing store burglary)). In response to Nix’s counsel’s .questions, Juror No. 3 also admitted that he remembered stealing a car and switching the license plates. (Id. at 225).

A number of additional arrests were reflected in the records obtained by the parties in preparation for the evidentiary hearing. Juror No. 3 appeared to have no memory of those arrests:

Q Do you recall being arrested in 1986 for assault in the second degree?

A No, I don’t.

Q Do you recall being arrested in March of 1987 for petit larceny?

A No.

Q And in connection with that arrest, do you recall you were convicted and were sentenced to two work Saturdays; do you have any recollection of that?

A No.

Q What about a conviction in November 1987 for petit larceny where you served 14 days in the Monroe County Jail; does that sound familiar to you?

A Truthfully, your Honor, I don’t remember none of this stuff. That was 28 years ago.

(Dkt. 358 at 81-82).

Q Do you recall being arrested in July of 1989 for burglary in the second degree for illegal entry of a dwelling?

A No, I do not.

Q Do you recall burglarizing, a home in May of 1989?

A No, I do not.

(Id. at 84). In addition, during the second day of the hearing, Juror No. 3 was questioned by the Court about reports concerning two separate alleged domestic violence incidents .(one in, 1993 and the other in 1999)—one of which he recalled but for which he denied being arrested, and the other of which he had no recollection. (Dkt. 359 at 176-77). During questioning by Nix’s counsel, Juror No. 3 appeared to have some recollection of a petit larceny conviction on March 10, 1987 (id. at 215-16), and possibly an assault charge when he was 16 (id. at 214-15), although it was impossible to distinguish at that point whether Juror No. 3 was testifying based on his memory or his review of records.

In addition, other than his six-month stint at shock camp for the clothing store burglary, Juror No. 3 indicated he had no memory of being incarcerated for any other period-of time, other than possibly overnight for th'e'stolen-vehicle charge:

Q Do you recall ever serving any time in the Monroe County Jail?

A Not at all, no, I don’t.

Q I mean, as you sit here right now, can you tell me whether or not you’ve been to the Monroe County Jail?

A Yes, I’ve been there.

Q And tell me in connection with why you’ve been there.

A For the stolen car.

Q Okay. And, so, tell me about the time—I mean, were you kept overnight for the stolen car?

A Yes.

Q So, how long were you kept overnight for the stolen car, do you recall?

A I don’t remember how long. I think I got out the next day on my own recognizance, I think. I’m not sure.

Q Do you recall being sentenced for that case [the stolen car case] in April of 1988, does that sound as though it may be correct?

A It sounds like it’s correct, the year, yes. . ,

Q If records indicated that you served ' six months in the Monroe County Jail for that, would those be accurate?

A All I remember is shock camp, six months in shock camp. I don’t remember doing six months in jail.

Q So if I understand correctly, you recall possibly spending a night in jail in connection the stolen car arrest, correct?

A Yes.

Q And you recall six months in shock camp correct?

A Yes.

Q But is there any other time that you recall of serving time either in prison or j ail in any capacity?

A Don’t remember.

Q Is there anything that would refresh your recollection?

A Not really.

(Dkt. 358 at 82-83). When confronted during the second day of the hearing with the certified .copy of his conviction involving the stolen vehicle, which indicated that he served six months in the Monroe County Jail in 1988, Juror No. 3 continued to insist that he had no recollection of serving that time. (Dkt. 359 at 185-86). In response to questioning by McCoy’s counsel, Juror No. 3 indicated that he did not share information about his prior sentences because “[s]he [referencing the Court] said visited a jail. I assume she meant visiting somebody else, not me actually going to jail. That’s why I didn’t tell her.” (Id. at 197). Juror No. 3 also responded to the Court’s questions during the first day of the hearing that with respect to his actual time in jail, as with the convictions, he assumed the questions applied to incidents only when he was 21 or older. (Dkt. 358 at 88-89).

In response to the Court’s questions, Juror No. 3 expressed his belief that his civil rights had been restored because of the age of his criminal convictions, and he also denied knowing that his criminal history would have disqualified him from jury service:

Q As far as you know, were your civil rights ever restored?

AI thought they were.

Q And why did you think they were?

A Because it happened 20 years ago. I assumed that they were.

Q Are you able to vote?

A Yes.

Q Did you know that a prior felony conviction, without having your civil rights restored, would have disqualified you from jury service in this case?

A No, I did not.

Q Would you agree with me, as you sit here now, that you did not answer this questionnaire correctly, this question number six?

A Yds.

Q And can you tell me, at the time that you answered it, did you know that you were answering that question inaccurately?

A No, I did not.

Q And what was your understanding of what the question was seeking, what information?

A Like I said, I thought it meant from 21 and up. I assumed that. That’s what I assumed.

Q Why did you assume that?

A Becaúse I thought everything that I did back then was expunged or whatever. I didn’t know that it was a felony still on there.

Q And you thought it was expunged because of your age?

A Yes.

(Id. at 85-86).

Juror No. 3 denied that his prior criminal history impacted his ability to be fair and impartial, and he denied being biased in favor of either Defendants or the Government. (Id. at 90; see also id. at 93; Dkt. 359 at 170). He also denied sympathizing or identifying with the cooperating witnesses in this case because of his criminal history. (Dkt. 358 at 91-92; Dkt. 359 at 170-71). Similarly, he denied working with law enforcement or prosecuting agencies as a cooperating witness and he had no recollection of cooperating against his co-defendants in the clothing store burglary case. (Dkt. 358 at 95).

Juror No. 3 testified that he was aware at the time of the hearing of the fact that his son had been convicted of a crime (id. at 93), but at the time of jury selection he had not spoken to his son in three or four years, and, as a result, he was not aware of his son’s conviction during jury selection. (Id. at 93-94; Dkt. 359 at 167). Juror No. 3 denied knowing of anyone else who was close to him who had been convicted of a crime (Dkt. 358 at 94-95; Dkt. 359 at 212-13), and he similarly denied visiting any family member or close friend in jail (Dkt. 358 at 95).

Juror No. 3 testified that he had been previously called for two other juries, and in one of those cases he was selected, but the jury never reached a verdict because the defendant pleaded guilty. (Dkt. 358 at 100-01; Dkt. 359 at 169). Juror No. 3 testified that he answered other juror questionnaires the same way he did in this case because he assumed the convictions were not part of his record if they occurred before the age of 21. (Dkt. 358 at 101). In response to questioning by McCoy’s counsel, Juror No. 3 denied any recollection of being asked during voir dire about his prior jury service, but then appeared to recall the question but could not recall if he had answered it:

Q And do you recall being asked if you’d ever sat on a jury before?

A No, I don’t. It was a long day.

Q And do you recall her [referencing the Court] asking if anybody had ever sat on a jury before?

A Yes.

Q And do you recall whether or not you answered that question?

A No, I don’t.

Q Did you tell her that you had sat on a jury before?

A I don’t know if I told her yes or no.

(Dkt. 859 at 193-94).

During the second day of the hearing, Juror No. 3 was questioned about an incident in October 1999, in which his home was broken into and various items were stolen, including jewelry and his wife’s checkbook. (Id. at 172). The records regarding this incident were produced on June 13, 2017, in response to a subpoena served by counsel for Nix (and, thus, were not available on the first day of the hearing). Juror No. 3 testified that he did not share this information in response to the Court’s questions during voir dire because “truthfully, it slipped my mind, forgot all about it.” (Id. at 173), Juror No. 3 testified that he had remembered the burglary only when the documents were produced in response to the subpoena. (Id.). Juror No. 3 denied having any recollection of the event at voir dire or during the trial, and testified that he recalled the incident only after being presented with the subpoenaed documents:

Q When did you remember it?

. A When I saw the documents.

Q So within the last 24 hours?

A Yes.

Q On Monday, before you had seen those documents, did you have any memory of this incident?

A No, I did not.

Q ... Were there any other occasions where you were living in a home and it was burglarized or robbed?

A Nope.

Q Is this the only time?

A It’s the only time.

Q Well, wasn’t it a pretty significant event in your life?

A Not really because we weren’t there. Just came home and the house was broken into.

Q ... [D]id your memory at all get refreshed about that sitting through a five-week trial dealing with home invasion?

A No, it did not.

Q I mean, that never once occurred to you?

A No, it did not.

Q And it wasn’t until you saw the actual police report in this case that I provided to counsel yesterday that this—hat you remember this?

A Yes.

(Id. at 173-74). The records from this incident indicate that Juror No. 3’s wife was the primary point of contact with law enforcement after the incident (Court Ex. 17), which was consistent with Juror No. 3’s testimony that his wife handled the matter. (Dkt. 359 at 201).

D. Certified Certificates of Conviction

Based on the certified certificates of conviction procured by McCoy’s counsel and introduced at the evidentiary hearing as Court Exhibits 21 and 22, the fact of the prior felony convictions is plainly established.

On March 9, 1988, Juror No. 3 pleaded guilty to criminal possession of stolen property in the fourth degree (a class E felony). (Court Ex. 21). The certificate of conviction reflected the imposition of a sentence on April 6, 1988, of six months in the Monroe County Jail. (Id.). This conviction involved the stolen car. Juror No. 3 was 18 years old at the time of this conviction and sentence.

On September 26, 1989, Juror No. 3 pleaded guilty to burglary in the .third degree (a class D felony), and he was sentenced to two to four years in the New York State Department of Corrections on January 11, 1990. (Court Ex. 22). Juror No. 3 testified that in lieu of serving two to four years in prison, he spent six months in shock camp. (Dkt. 358 at 78). This conviction involved the clothing store burglary. Juror No. 3 was 19 years old at the time of this conviction and sentence.

E. Post-Hearins Submissions

In accordance with the schedule set by the Court, McCoy filed his post-hearing memorandum on July 7, 2017. (Dkt. 363). In that submission, McCoy argues that Juror No. 3’s felony conviction alone warrants the granting of a new trial, without any showing of bias. (Id. at 8-10). Alternatively, McCoy argues that both prongs of the McDonough test have been satisfied (id. at 10-17), contending that Juror No. 3 was involved in conduct similar to the conduct at issue in this case so as “raise the possibility that an inferred bias exists” and the “potential for substantial emotional involvement” (id. at 15), and as a result, Juror No. 3 would have been excused for cause if he gave honest answers during voir dire. McCoy concedes in his submission that it “is unknown ,.. why [Juror No. 3] lied during voir dire” (id. at 17; see also id. at 19), but contends that the material and repeated lies-by Juror No. 3 make his presence. on the jury “incompatible with our truth-seeking process.... ” (Id. at 18). McCoy does not specify any actual bias that has been demonstrated on the part of Juror No. 3, but rather contends that the Court should infer bias and order a new trial as a result. (See ,id. at 17-23).

On July 8, 2017, counsel for Nix emailed his post-hearing submission to the Court and counsel, and then filed that submission on July 19, 2017. (Dkt. 369). In that submission, among other things, Nix refers to alleged prior drug convictions related to alleged siblings of -Juror No.’ 3. (Id. at ll). Nix also argues that one of the'Government’s potential law enforcement witnesses in this case was involved in the investigation of Juror No. 3’s clothing store burglary, and since Juror No. 3 was convicted based on that law enforcement witness’ efforts, “[h]e would remember him.” (Id. at 13). He also argues that another Government witness was involved in the investigation related to Juror No. 3’s son. (Id.). Indeed, Nix contends that Juror No. 3 has “had bad experiences with law enforcement.” (Id. at 12). However, the thrust of Nix’s post-hearing submission is that Juror No. 3 necessarily identified with the cooperating witnesses in this case, and, therefore, he must have been biased against Defendants. (See id. at 22),

In accordance with the schedule set by the Court, the Government filed its post-hearing memorandum of law on July 21, 2017, (Dkt. 370). The Government argued that Juror No. 3’s non-responsive answers and demeanor during the hearing demonstrated that he had difficulty understanding questions put to him by the Court and counsel. (Id. at 2 (“He appeared nervous and uncomfortable and, at .times, defensive, which is understandable (in additional to his lack of comprehension) considering he was ordered to appear in court, read his rights in open court as if he were under arrest, assigned an attorney, and publicly questioned under oath by a federal judge, two criminal defense lawyers, and a federal prosecutor.”)). The Government argues that the evidentiary hearing did not reflect a “‘searching inquir/ by the defense to vindicate a constitutional right” but rather it reflected “an all-out attack with the singular focus of trying to make the juror look like a liar at every turn, for the sole purpose of getting out from under the consequences of the constitutionally valid guilty verdicts after a full, fair and impartial trial by a jury they chose.” (Id. at 2-3). The Government challenges the nature of the questioning by defense counsel, contending that it was “done in á sarcastic, condescending and goading manner” and that before the hearing, those same counsel “had already publicly vilified [Juror No. 3] as a liar and unfairly'blamed him for the plight of their clients.” (Id. at 4). The Government contends that Defendants have failed to establish that Juror No. 3 intentionally lied during jury selection, nor have they demonstrated that honest answers would have required the Court to excuse Juror No. 3 because of actual or implied bias, or justified his excusal due to inferred bias against Defendants or in favor of the Government. (Id. at 4-5). In short, the Government' submits that Defendants have failed to meet their burden under the McDonough test.

Defendants filed their post-hearing reply memoranda on July 28, 2017. (Dkt. 371; Dkt. 372). Nix argues that the “prosecution is very tolerable of perjury in a federal courtroom when it suits them” and that, contrary to the Government’s arguments, every response from Juror No. 3 at the hearing “was more deceitful and mendacious than the next.” (Dkt. 371 at 2). McCoy challenges the Government’s description of the hearing as “pure invention” and “especially outlandish” given the plans that the Court put in place with respect to the conduct of the hearing. (Dkt. 372 at 2). McCoy continues-that “lying at voir dire because of embarrassment or some other benign reason might be understandable, [but] multiple lying at the hearing and indeed committing perjury is another thing altogether.” (Id. at 4). McCoy submits that “perhaps Juror # 3’s inability to accept his past led to the same pattern of false answers.” (Id. at 8).‘McCoy argues that a challenge for cause by the Government would have been granted if Juror No. 3 had disclosed his criminal history. (Id. at 9). McCoy also argues that Defendants would have raised a successful cause challenge if they had known about the burglary involving Juror No. 3 ⅛ home. (Id.).

III. LEGAL STANDARD

Pursuant to the Jury Selection and Service Act of 1968, 28 U.S.C. § § 1861 et seq. (“JSSA”), Juror No. 3’s prior felony convictions made him statutorily ineligible to serve on the jury in this case. See 28 U.S.C. § 1865(b)(5) (disqualifying from jury service any person who “has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been -restored”). However, this information was never disclosed during voir dire, and it is too late for any statute-based challenge to Juror No. 3’s service. See id. § 1867(a), (e) (providing that the procedures under the JSSA are exclusive means to challenge jury not selected in conformity with the provisions of the JSSA, and setting final deadline to challenge as before the voir dire examination begins); Dkt. 381 at 3-6 (discussing the untimeliness of any challenge by Defendants to jury under JSSA); see also United States v. Silverman, 449 F.2d 1341, 1344 (2d Cir. 1971) (finding where there was a substantial failure to comply with § 1865(b)(2), but the challenge was not raised until after the return of the verdict, the defendant’s “attack on that conviction cannot be founded on [the juror’s] disqualification under the statute”); United States v. Harmon, 21 F.Supp.3d 1042, 1049 (N.D. Cal. 2014) (finding § 1865(b)(5) “is a statutory bar as applied to prospective jurors, not a constitutional requirement required under due process principles”); cf. United States v. Boney, 977 F.2d 624, 633 (D.C. Cir. 1992) (finding that the provisions set forth in § 1865(b)(5) apply to the procedures utilized by a district court to administer the jury selection process—not to a situation where a juror fails to disclose his felon status on the jury qualification form).

As a result, Defendants base their challenge to Juror No. 3’s selection for this jury on the Sixth Amendment’s guarantee of the right to an impartial jury. However, the “Sixth Amendment right to an impartial jury ... does not require an absolute bar on felon-jurors.” Boney, 977 F.2d at 633. As explained by the D.C. Circuit in Boney:

A per se rule would be appropriate ... only if one could reasonably conclude that felons are always biased against one party or another. But felon status, alone, does not necessarily imply bias. In fact, as the dissent suggests, Congress’ purpose in restricting felons’ jury service may stem from considerations other than a concern for biased jurors. More important, a per se rule requiring a new trial whenever it turns out that a felon served on a jury seems inconsistent with McDonough’s hostility to unnecessary new trials, and the oft-repeated axiom that “a defendant is entitled to a fair trial but not a perfect one.” We think, therefore, that the Sixth Amendment guarantee of an impartial trial does not mandate a per se invalidation of every conviction reached by a jury that included a felon.

Id. at 633 (citations omitted); see also United States v. Langford, 990 F.2d 65, 69 (2d Cir. 1993) (rejecting the argument that a juror’s intentionally false response during voir dire is automatic grounds for a new trial).

Thus, the question as to whether Defendants’ Sixth Amendment rights were violated by virtue of Juror No. 3’s selection to the jury necessarily centers on whether his presence destroyed the impartiality of the jury; in other words, was Juror No. 3 biased? Based upon the Supreme Court’s decision in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Second Circuit has adopted a two-part test that a defendant must establish in order to justify granting a new trial based upon incorrect responses by a juror during voir dire: (1) the defendant must first demonstrate that the juror “failed to answer honestly a material question on voir dire”; and (2) the defendant then must also demonstrate that “a correct response would have provided a valid basis for a challenge for cause”—in other words, the juror would have been excused for bias based on the correct voir dire response. Langford, 990 F.2d at 68-69 (quoting McDonough, 464 U.S. at 556-58, 104 S.Ct. 845); see also United States v. Stewart, 433 F.3d 273, 303 (2d Cir. 2006) (“[A] party alleging unfairness based on undisclosed juror bias must demonstrate first, that the juror’s voir dire response was false and second, that the correct response would have provided a valid .basis for a challenge for cause.”); United States v. Shaoul, 41 F.3d 811, 816 (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.”).

■ The first part of the test entails a threshold requirement to show juror dishonesty. Shaoul, 41 F.3d at 815. In other words, the Court must assess whether Juror No. 3 deliberately lied or consciously deceived the Court, as opposed to providing inaccurate responses as a result of a mistake, misunderstanding or embarrassment. See McDonough, 464 U.S. at 555, 104 S.Ct. 845; Langford, 990 F.2d at 69-70 (finding where a juror’s intentionally false statements at voir dire were caused by embarrassment, and there was no evidence “that she gave false answers because of any desire to sit on the jury,” .it was proper for the district court to deny the defendant’s motion for a new trial (emphasis added)); see, e.g., United States v. Escalera, 536 Fed.Appx. 27, 35 (2d Cir. 2013) (“[The defendant] :points to no record evidence that the juror intentionally failed to disclose [material information'during voir dire], much less that the reason for the non-disclosure was to avoid excusal (as opposed to embarrassment) or to conceal some bias that could have prejudiced the trial.”); Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (“Not all jurors may walk a perfectly straight line. A distracted juror might fail to mention a magazine he subscribes to. An embarrassed juror might exaggerate the importance of his job. Few voir dires are impeccable, and most irregularities can be shrugged off as immaterial to the fairness of the trial.”).

With respect to the second part of the test, the 'Court must determine if it would have granted a hypothetical cause challenge if Juror No. 3 had' responded accurately to the Court’s questions. Stewart, 433 F.3d at 304 (citing United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2002)); see United States v. Blackwell, 436 Fed.Appx. 192, 196 (4th Cir. 2011) (“[A] ‘Mc-Donough claim necessarily fails unless the court would have committed reversible error—that is, abused its discretion—in failing to dismiss a juror.’ ” (citation omitted)).

This second part of the test is really the most crucial. Stewart, 433 F.3d at 305 (“The significant factor, however, is that the District Court found that even if it were established that [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 [the defendants] or had prejudged the evidence.”). The critical determination is not simply whether'the lies in question are deliberate, but rather whether “the deliberateness of the particular lies evidenced partiality.” Id. (quoting Greer, 285 F.3d at 172-73); see also Greer, 285 F.3d at 170-71 (finding it unnecessary to determine whether juror dishonestly answered questions at voir dire because “the District Court did not exceed its allowable discretion in finding that those omissions and misstatements did11 not satisfy McDon-ough’s prong two”).

A juror’s dishonesty under the first part of the test “is among the ‘factors to be considered’ in the ultimate determination of bias ... [but] an analysis of bias is required even if the juror’s erroneous response was deliberate.” Greer, 285 F.3d at 173. It is important to consider the dishonesty in the second part of the test because it can show “a personal interest-in this particular case that was so powerful as to cause the juror to commit a serious crime [by lying during voir dire ].” United States v. Colombo, 869 F.2d 149, 151 (2d Cir. 1989). In other words, a bright line does not divide the two prongs of the test, and there is some blurring of the factors to be considered under each prong. “Challenges for cause are generally based.on actual bias, implied bias, or inferable bias.” Greer, 285 F.3d at 171 (citing United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)). As explained by the Second Circuit:

Actual bias is bias in fact. Implied bias, by contrast, is bias presumed as a matter of law. Finally, inferred bias is available when actual or implied bias does not apply. “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.”

Id. (citations'omitted). At least in the Second Circuit, it is unsettled whether either implied or inferred bias may.serve as the basis for a post-trial allegation of jury partiality. See id. at 172.

There is only one instance where the Second Circuit has found a reason to overturn a verdict on the basis of juror nondisclosure under McDonough—in the ease of United States v. Parse, 789 F.3d 83 (2d Cir. 2015). Cf. Stewart, 433 F.3d at 303 (observing, pre-Parse, that this “Court has never found reason to overturn a verdict on the basis of juror nondisclosure under McDonough and only once, ... has remanded for an evidentiary hearing on the matter”); United States v. Colombo, 909 F.2d 711 (2d Cir. 1990) (having previously remanded to the district court to conduct post-trial hearing regarding allegations that juror deliberately lied during voir dire, finding upon appeal after remand that district court’s finding that juror had not intentionally withheld information was not clearly erroneous).

Parse involved a situation where, after a verdict was returned in favor of the Government, a juror sent a letter to the Government praising its performance but lamenting the acquittals on some of the counts as to one of the defendants (Parse). 789 F.3d at 90. That letter prompted further investigation by defense counsel and a revelation that the juror had lied extensively during voir dire about her criminal history, her background, and a host of other information, including the fact that she was an attorney facing disciplinary action. Id. at 91. The district court ordefed an evidentiary hearing to go forward, and the juror initially refused to appear, prompting an arrest warrant to be issued. Id. The hearing ultimately went forward, and the juror admitted lying during voir dire “to make herself more ‘marketable’ as a juror....” Id. In other words, the juror admitted that she created a fictional profile to make herself more attractive as a juror. Id. at 91-92. The district court concluded that the juror’s false answers “were attributable neither to a desire to avoid embarrassment nor to honest mistakes,” id. at 92, but rather were “premeditated and deliberate,” id. at 93 (quoting United States v. Daugerdas, 867 F.Supp.2d 445, 469 (S.D.N.Y. 2012)), The district court further concluded that ,the juror “was ‘a pathological liar and utterly untrustworthy,’ ” describing the lies as “breathtaking” and “calculated to prevent the Court and the parties from learning her true identity, which would have prevented her from serving on the jury.” Id. at 92 (quoting Daugerdas, 867 F.Supp.2d at 468-70). The juror lied in response to clear and unambiguous voir dire questions, and the district court rejected any .contention that the juror was somehow confused by the questions, particularly given her status as an attorney. Id. Moreover, the events about which the juror lied were “recent, personally significant, and directly affected her qualifications to servé as a juror.” Id. (quoting Daugerdas, 867 F.Supp.2d at 469).

Her arrests and suspensions from the practice of law were not the result of youthful indiscretions or errors on the part of police or courts.... There is no dispute that [the juror] was aware of her prior convictions, her attorney disciplinary problems, and her personal injury suit at the time she answered the Court’s questions under oath. There is also no question that she made a conscious decision to hide them from the Court.

Id. at 92 (quoting Daugerdas, 867 F.Supp.2d at 469). As a result, the district court concluded that the juror was actually-biased against the defendants, but with respect to the defendant Parse, the district court concluded that his counsel was aware of these issues during the trial and failed to raise the issue until after the verdict, thus waiving any claim. Id. at 93, 101-02.

On appeal, the Second Circuit explained that a new trial was required where “the juror’s false responses ‘obstructed the voir dire and indicated an impermissible partiality on the juror’s part.’” Id. at 110 (quoting Colombo, 869 F.2d at 151).

Where the juror has lied for the purpose of securing a seat on the jury—a mission apparently “so powerful as to cause the juror to commit a serious crime”—it “re-flectes] an impermissible partiality on the juror’s part.” Such conduct not only suggests a view on the merits and/or knowledge of evidentiary facts but is also quite inconsistent with an expectation that a prospective juror will give truthful answers concerning her or his ability to weigh the evidence fairly and obey the instructions of the court.... [CJertainly when possible non-objectivity is secreted and compounded by the deliberate untruthfulness of a potential juror’s answer on voir dire, the result is deprivation of the defendant’s rights to a fair trial. Where the juror has deliberately concealed information, “bias” is to be “presume[d].”

Id. at 111 (citations omitted). The Second Circuit concluded that the district court appropriately determined that the juror’s presence caused the jury not to be impartial, and furthermore, that the record did not support the conclusion that Parse had waived his challenge.

In these circumstances—in which a juror aligned herself with the government, lied pervasively in voir dire for the purpose of avoiding dismissal for cause, believed prior to the presentation of any evidence that the defendants were “ ‘crooks’ ” and expressly mentioned [the defendant] as a target of her efforts to persuade the other jurors to convict—a refusal to order a new trial for Parse would seriously affect the fairness, integrity, and public reputation of judicial proceedings.

Id. at 120. Thus, the Second Circuit reversed the district court’s denial of the motion for a new trial as to Parse. Id.

IY. FIRST PRONG OF McDONOUGH-FAILURE TO ANSWER HONESTLY MATERIAL QUESTION ON VOIR DIRE

A General Assessment of Juror No. S

Defendants contend that, like the juror in Parse, Juror No. 3 deliberately lied during voir dire and continued his lies during the evidentiary hearing before this Court. (See, e.g., Dkt. 363 at 17; Dkt. 369 at 53). The Government contends that Juror No. 3 was tricked and attacked by defense counsel, and, at most, displayed a lack of recall and comprehension that resulted in the inaccurate answers during voir dire and confusion during the eviden-tiary hearing. (Dkt. 370 at 1-2).

An analysis of Juror No. 3’s credibility under the first prong of the McDonough test is a more nuanced inquiry than posited by either the Government or Defendants. Having observed Juror No. 3’s facial expressions, demeanor, and intonation while he testified during the two-day evi-dentiary hearing, including when he responded to the Court’s questions, it was apparent that Juror No. 3 had problems understanding the questions and expressing himself clearly. In part, this appeared attributable to nervousness. Juror No. 3 was questioned in open court before Defendants and their counsel, Government counsel, and a large number of spectators. The courtroom was significantly more crowded during the evidentiary hearing involving Juror No. 3 than it had been at any point during the five-week trial.

The testimony must also be viewed through the lens of one with Juror No. 3’s educational background. Juror No. 3 appeared neither sophisticated nor bright. He exhibited poor comprehension during the evidentiary hearing and difficulties providing understandable and clear answers. As an example, the following answers were elicited during the Court’s questions:

Q Do you recall being asked by me during jury selection whether you had ever been a defendant in a criminal case?

A Yes.

Q And you didn’t respond to that question, correct?

A No.

Q And can you tell me why you didn’t respond to that question?

A Because I didn’t think it responded to me at the time.

Q What?

A I didn’t think it responded to me at the time.

Q But my question was had you ever been a defendant in a criminal case. You had been a defendant in a criminal case, correct?

A I don’t understand what you mean, your Honor.

Q So you don’t know what I mean when I’m saying defendantr-

AYes.

(Dkt. 358 at 86-87 (emphasis added)).

The above exchange plainly depicts Juror No. 3’s vocabulary challenges. He repeatedly utilizes the Court’s reference to “respond” in its questions to provide his answers, even though answering the question with reference to that word is plainly an incorrect use of the word “respond.”. Similarly, he exhibits difficulty understanding the meaning of the word “defendant.” The Court did not view this testimony as intentionally deceptive. Juror No. 3 did not display attributes of cleverness. Rather, Juror No. 3 displayed vocabulary and comprehension issues that the Court interpreted as impacting the substance of his testimony. In the Court’s view, Juror No. 3 was what he seemed: a relatively simple individual with a lack of education and sophistication who had difficulty comprehending certain areas of inquiry.

Thus, in assessing Juror No. 3’s credibility, the Court must exercise caution against viewing Juror No. 3’s testimony from the Court’s own educational or socioeconomic background. As recognized by the Supreme Court, “jurors are not necessarily experts in English usage, Called as they are from all walks of life, many may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges.” McDonough, 464 U.S. at 555, 104 S.Ct. 845.

In addition, as ■ discussed below, the Court finds that Juror No. 3 provided false testimony at the evidentiary hearing concerning his criminal record. However, based upon the Court’s observations of Juror No. 3 during the evidentiary hearing, including his demeanor, tone, and facial expressions, along with the substance of his testimony, the Court does not discredit the entirety of his testimony even though some parts of it were plainly false. See Van Buren v. Cargill, Inc., 10-CV-701S, 2016 WL 231399, at *1 & n.5 (W.D.N.Y. Jan. 19, 2016) (“[F ]alsus in uno merely permits, but does not requiré, a finder of fact to disregard the entirety of the' testimony.” (citing United States v. Weinstein, 452 F.2d 704, 713 (2d Cir. 1971) (“The maxim ‘Falsus in uno, falsus in omnibus’ has been well said to be itself ‘absolutely false as a maxim of life.’ ” (citation omitted)).

B. Deliberate Lies

Against this backdrop, the Court must assess whether Juror No. 3 intentionally gave false answers during voir dire. The Court will first address the information supplied that was unrelated to the criminal background of Juror No. 3.

1. Answers Unrelated to Juror No, 8’s Criminal Background

a. Burglary , of Juror No. 8’s Home

It was revealed at the evidentiary hearing that Juror No. 3 had his home burglarized in October 1999, but he never shared that information in response to the Court’s question: “Has anyone ever been the victim of a home robbery?” (Dktl 328 at 97), The Government argues that Juror No. 3 was the victim of a home “burglary,” not a “robbery,” and he was never asked during voir dire about being the victim of a burglary. (Dkt. 370 at 16). Although technically correct, the- Court does not find the Government’s argument persuasive, particularly in view of the burglaries described by other prospective jurors in response to the Court’s question about a “home robbery.” (See Dkt. 328 at 97-101).

However, based on Juror No. 8’s demeanor, tone, and appearance when questioned at the evidentiary hearing about the home burglary—which occurred almost 20 years ago—the Court is convinced that the incident had completely slipped his mind. Moreover, the Court agrees with the Government’s argument that no correlation exists between .’the violent home invasions described during the trial and the burglary of Juror No. 3’s home, such that the trial testimony should have been expected to trigger Juror No. 3’s recollection about the burglary. When he was questioned about the home burglary,and.his failure to disclose the information, Juror No. 3 appeared genuinely surprised that he had not earlier recalled the burglary. Moreover, the documentary evidence involving the burglary suggests that Juror No. 3’s wife was the primary point of contact with law enforcement following the incident. Thus, the Court easily concludes that Juror No. 3 did not intentionally fail to disclose information about this burglary from 1999. See, e.g., Harmon, 21 F.Supp.3d at 1052 (“[C]ourts ‘must be tolerant, as jurors may forget incidents long buried in their minds, misunderstand a question or bend 'the truth a bit to avoid embarrassment. The Supreme Court-has held that an honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation.’ ” (quoting Dyer, 151 F.3d at 973)).

b. Criminal Convictions of Individuals “Close” to Juror No. 3

Defendants also contend that Juror No. 3 failed to disclose the criminal convictions related to his brother “Gary,”- his sister “Cynthia,” his son, and his wife “Tracey.” (Dkt. 369 at 15). The Court asked during voir dire whether “anyone close to” the prospective jurors had been convicted of a crime. (Dkt. 328 at 239). Juror No. 3 did not reveal any information in response to this question.

At the evidentiary hearing, in response to Nix’s counsel’s questions, Juror No. 3 testified that he had not seen his brother “Gary” in three or four years, and he was unaware of his brother’s criminal convictions for multiple drug offenses. (Dkt. 359 at 212). Similarly, Juror No. 3 testified that he was unaware of his son’s criminal convictions at the time of jury selection, and he had not seen him in about three or four years. (Dkt. 358 at 93-94; Dkt. 359 at 167, 212). Juror No. 3 also was unaware of any arrests of his wife from whom he is separated (but not legally divorced). (Dkt. 359 , at 213)., Juror No. 3 was not asked any questions about his knowledge of the criminal record of his sister “Cynthia,”'or when he last saw her.

Thus, there is.no basis for the Court to conclude that Juror No. 3 failed to provide material information on this subject during voir dire because the record indicates that Juror No. 3 was not aware of the convictions and Juror No. 3 did not view himself as close to the individuals in question. See, e.g., United States v. Stewart, 317 F.Supp.2d 432, 438 (S.D.N.Y. 2004) (recognizing ambiguity in questions as to whether somebody “close” to juror had been victim of crime,' and finding that .defendants could not “demand a new trial because a juror failed to place the broadest possible construction on those questions”), aff'd, 433 F.3d 273 (2d Cir. 2006).

c. Prior Jury Service

During voir dire, the Court questioned the prospective jurors about their prior jury service by asking: “Has anyone ever served on a jury before?” (Dkt. 328 at 205 (emphasis added)). In the Court’s view, the question was straightforward, and in response a number of prospective jurors provided information regarding their prior jury experience. (Id. at 205-13). In addition to providing the parties with information that may be utilized during peremptory challenges, the primary purpose of the Court’s questions on this topic was to ensure that nothing about that prior jury service would impact a prospective juror’s ability to be fair and impartial. In other words, prior jury service does not, in and of itself, normally constitute a basis for a cause challenge.

Juror No. 3 did not respond to the question during vow dire. This topic was addressed during both days of the evidentia-ry hearing. During the first day of the hearing, the Court elicited the following testimony: ■ ■

Q Have you ever served on any other juries?

A I was called for two but they took the plea, so I didn’t have to.

(Dkt. 358 at 100-01 (emphasis added)). In other words, Juror No. 3 suggested that he “didn’t have to” serve on any prior juries because the cases were resolved through pleas. No follow-up questions were asked during .the first day of the hearing.

During the second day of the hearing, the Court again addressed the topic during its questioning:

Q Now, you had mentioned, I believe, that there were other occasions where you were summoned for jury duty?

AYes.

Q And this was in state court, not federal court-

AYes.

Q—correct? Did you ever, like, actually ' pet selected or did you get put in the box?

AI was selected.

Q On how many occasions were you selected?

A Once.

Q And do you remember the type of case?

A No, I don’t.

Q Was it civil or criminal?

AI believe it was criminal.

Q But the case, the jury did not ultimately deliberate in that case?

A No, the person took the plea.

Q How long ago was this where you were selected to serve on a jury?

A A few years ago.

Q And is that the only other time that you’ve- been called for jury service, other than this incident?

A There was one other time before that, too.

Q And were you selected in that case?

A Nope.

Q Did you ever get put into the box and asked questions?

A No.

Q And this was before the other time that you just mentioned?

'AYes.

Q Do you know how long ago that was?

A Probably about a year before-that.

(Dkt. 359 at 168-70 (emphasis added)).

When questioned by counsel for McCoy, Juror No. 3 initially denied any'recollection of being asked about prior jury service during voir dire, responding “[i]t was a long day.” (Id. at 193). Counsel for McCoy then asked the questions again:

Q And do you recall her [the C