UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA v. WILLIAM F. CELLINI, SR.

) ) ) ) ) No. 08 CR 888-4 Hon. James B. Zagel

GOVERNMENTS POST-HEARING BRIEF IN OPPOSITION TO DEFENDANTS EMERGENCY RULE 33 MOTION This Court having conducted a full inquiry of the post-verdict revelation that Juror Candy Chiles had two prior convictions that were not addressed during voir dire, it is now clear that the defendant had failed to establish that juror Chiles deliberately concealed the convictions, or that accurate responses to the questions put to her would have led the Court to exclude her for cause. As demonstrated below, defendants motion should be denied. I. APPLICABLE LAW To obtain a new trial based on a jurors alleged misstatements on juror questionnaires or during juror voir dire, the Supreme Court requires that the defendant show two things: (1) that the juror failed to answer honestly a material question on voir dire, and (2) that a correct response would have provided a valid basis for a challenge for cause. McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984). Defendants burden of proof must be

sustained not as a matter of speculation, but as a demonstrable reality. Dall v. Coffin, 970 F.2d 964, 969 (1st Cir. 1992) (internal quotations omitted); see also, generally, Dunn v. United States, 284 U.S. 390, 394 (1932) (speculation is insufficient reason to upset a jurys verdict). Under the first prong of the McDonough test, honest but inaccurate or mistaken responses to voir dire questions are not a sufficient basis upon which to grant a new trial. See McDonough, 464 U.S. at 555 (To invalidate the result of a three-week trial because of a jurors mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give.); United States v. Caputo, 517 F.3d 935, 942 (7th Cir.) (affirming district courts finding, after questioning juror, that new trial was not warranted where juror made an honest mistake in failing to disclose six prior misdemeanor convictions), cert. denied, 555 U.S. 819 (2008); United States v. Balistrieri, 779 F.2d 1191, 1225-6 (7th Cir. 1985) (honest mistakes by a juror do not warrant further inquiry); United States v. Bishop, 264 F.3d 535, 555 (5th Cir. 2001) (holding inaccurate responses to voir dire questions are excused when caused by inattention or when a query does not elicit the specific information relevant to the jurors disqualification). The Supreme Court has recognized that jurors are not necessarily experts in English usage. Called as they are from all walks of life, many may be
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uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges. McDonough, 464 U.S. at 555. Thus, incorrect answers to questions that would be ambiguous to the average juror are properly understood to be inadvertent errors which fail to meet the standard of McDonoughs first prong. See United States v. Stewart, 433 F.3d 273, 304 (2d Cir. 2006) (upholding district courts denial of new trial without hearing where questions were ambiguous); Olson v. Bradrick, 645 F. Supp. 645, 660 (D. Conn. 1986) (noting that prospective jurors are seldom expert in the meanings of words or the art of grammatical construction, and holding that a jurors failure to understand the full meaning of an unclear question is not comparable to intentional misrepresentation). Under the second prong of the McDonough test, a new trial is granted based on dishonest answers to questions during jury selection only where correct responses to those questions would have resulted in a successful challenge for cause. See United States v. Benabe, 654 F.3d 753, 780 (7th Cir. 2011) (applying McDonough standard). A valid basis for a cause challenge requires a showing of obvious bias or potential for bias, United States v. Harbin, 250 F.3d 532, 545 (7th Cir. 2001), that is, a showing that the juror held particular beliefs that would somehow impede [him] in giving due weight to the evidence and following the judges instructions. Thompson v. Altheimer & Gray,
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248 F.3d 621, 626 (7th Cir. 2001). It is not sufficient to show that a proper disclosure by the juror would have led defendant to use a peremptory challenge. See McDonough, 464 U.S. at 555 ( it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination); see also United States v. Vargas, 606 F.2d 341, 346 (1st Cir. 1979). Thus, facts that a party may have considered undesirable had they been revealed during jury selection are not enough; to obtain a new trial a defendant must show that the concealed facts reflected bias warranting dismissal for cause. See United States v. Stewart, 433 F.3d 273, 304 (2d Cir. 2006) (stating that the Court must determine if it would have granted the hypothetical challenge for cause and rejecting new trial motion because even if it were established that [the jurors] responses were false as alleged, none of the correct answers would have supported an inference that he was biased or prejudiced against [defendants] or had prejudged the evidence) (internal quotation omitted). Defendant ignores McDonoughs second prong by arguing that If the juror provided inaccurate answers during voir dire and did so by deliberately concealing material information, bias should be presumed and a new trial granted. R.922 at 1. Neither the Supreme Courts McDonough decision, nor
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binding Seventh Circuit precedent applying McDonough, permits a district court to grant a new trial based solely on bias presumed or implied from a jurors deliberate concealment or misstatement during jury selection. By setting a twoprong standard, the Supreme Court rejected a standard requiring only deliberate concealment or misstatement. The Court explained that [t]he motives for concealing information may vary, but only those reasons that affect a jurors impartiality can truly be said to affect the fairness of a trial. Id. Therefore, the Court held that a new trial was not warranted in the absence of a showing that a correct response would have provided a valid basis for a challenge for cause. McDonough, 464 U.S. at 556. Implying bias based solely on a jurors having deliberately concealed or misstated information likewise would fail to comport with binding Seventh Circuit precedent, which, unsurprisingly, follows the standard set forth in McDonough. See, e.g., United States v. Warner, 498 F.3d 666, 684-88 (7th Cir. 2007); Caputo, 517 F.3d at 942; Benabe, 654 F.3d at 780. No other circuit holds that a new trial is warranted solely because a juror was deliberately dishonest.1

See Stewart, 433 F.3d at 305; United States v. North, 910 F.2d 843, 905 (D.C.Cir.), modified in part and rehg denied in part on other grounds, 920 F.2d 940 (D.C.Cir. 1990) (en banc) (rejecting the proposition that a potential jurors deliberate concealment of a material fact constitutes per se evidence of bias); United States v. Brown, 26 F.3d 1124, 1127 (D.C. Cir. 1994) (rejecting claim that jurors dishonesty was insufficient to warrant new trial without evidence of bias). 5

Moreover, a review of the circumstances in which courts from other circuits have granted new trials based on deliberate concealment or misstatements by a juror reveals that they have included both deliberate dishonesty on the part of the juror, and a concealment of information that itself was reflective of bias, or other facts reflecting bias. For example, in Dyer v. Calderone, 151 F.3d 970, 982 (9th Cir. 1988), a juror in a murder trial was found to have falsely denied having a relative who was the victim of a crime, despite the fact that her brother had been murdered in a manner similar to that allegedly used by the defendant to kill his victims. As the court noted, the information withheld by the juror reflected potentially serious bias against the defendant. See e.g., Gonzalez v. Thomas, 99 F.3d 978, 989 (10th Cir. 1996) (The crux of the implied bias analysis in a case like this one is found in an examination of the similarities between the jurors experiences and the incident giving rise to the trial. We are looking for similarities that would inherently create in a juror a substantial emotional involvement, adversely affecting impartiality.) (quoting United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977); see also United States v. Eubanks, 591 F.2d 513, 516 (9th Cir. 1979) (defendant charged with conspiracy to distribute heroin; juror, who had two sons serving long prison terms for murder and robbery perpetrated in furtherance of heroin addiction, falsely stated on a juror qualification form that he had no children).
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The nature of the information withheld by the juror in Dyer, which bore a significant relationship to the facts of the case, supported the inference that the juror had acted deliberately, and that she had failed to disclose information regarding her brother to avoid being disqualified from sitting on the jury. Taking all these factors into account, the Dyer court determined that it was not necessary to determine whether the juror was actually, subjectively biased, and granted a new trial based on implied bias. In Green v. White, 232 F.3d 671, 677-78 (9th Cir. 2000), a juror lied twice about his criminal history to get a seat on the jury, and, when confronted with this lies, provided misleading, contradictory, and outright false answers. Id. at 678. Although the Ninth Circuit relied on Dyer and spoke in terms of presumed bias, the court looked beyond the jurors lies and consistent with McDonoughs two-prong approach examined the jurors apparent motive for the lies: In addition to these lies, he [the juror] engaged in behavior that brings his impartiality into serious question, and provides strong circumstantial evidence of his motive for lying: his stated desire to get a gun and kill [the defendant] himself; his statement that he knew [the defendant] was guilty from the moment he saw him; his statement to a friend that the wrong people receive too many rights; and his past investigation activities, which, of course, he boasted about to the jury. All of these facts, considered as a whole, create destructive uncertainties regarding [the jurors] ability to render a fair verdict.

Id. Based on these findings, the court ordered a new trial. Thus, contrary to defendants suggestion, the Ninth Circuits decision in Green does not support granting a new trial based on bias presumed or implied solely from a jurors deliberate concealment or misstatement during jury selection. A fair reading of these cases provides no support for a rule requiring a new trial in every case involving deliberate concealment or misstatement by a juror during voir dire. Moreover, to the extent that the concept of implied bias is applicable to the McDonough test, it should be invoked only rarely and in extreme situations, such as where a juror is a victim of the alleged crime or is related to the parties. See United States v. Medina, 430 F.3d 869, 878 (7th Cir. 2005); Smith v. Phillips, 455 U.S. 209, 222 (1982) (OConnor, J., concurring); United States v. Torres, 128 F.3d 38, 46 (2d Cir. 1997) ([T]he situations in which a trial judge must find implied bias are strictly limited and must be truly exceptional....). Inaccurate answers to questions during voir dire, even deliberately inaccurate answers, standing alone, do not constitute an extreme situation warranting a finding of implied bias. Thus, under the broadest

possible reading of applicable Supreme Court and Seventh Circuit precedent, such conduct by a juror provides no basis for granting a new trial in the absence of a finding that, had the juror properly disclosed the information in question, the juror would have been subject to exclusion for cause.
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II.

DEFENDANT CANNOT SATISFY MCDONOUGHS REQUIREMENTS A. Defendant Cannot Show Deliberate Concealment.

The evidence before the Court establishes that Chiles did not intentionally deceive the Court on any matter, so defendant has not and cannot satisfy McDonoughs first prong. In a few instances, Chiles made innocent mistakes, but her testimony at the hearing on January 6, 2012 (the January 6 Hearing), as well as the surrounding circumstances, demonstrate that she did not intentionally lie about any material matter. 1. Chiles Did Not Intentionally Lie About Her Criminal History a. Statements on the Juror Qualification Questionnaire

Defendant first argues that Chiles lied on the Juror Qualification Questionnaire (attached as Exhibit A). Chiles gave an incorrect answer to Question 6, which asked if she had ever been convicted either by your guilty or nolo contendere 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. Ex. A at 1. Chiles explained that I misread [the question]. I thought it said if I ever been punished and had to do trial for 1 year... Thats why I put no. Transcript of January 6 Hearing (Tr.) at 17. Thus, Chiles gave a truthful answer to the question she thought was posed by Question 6, which was whether she had been
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sentenced to more than a year in prison as a result of a conviction. Chiless explanation that she made an innocent mistake on her answer to Question 6 is credible. Chiless demeanor in answering the Courts questions about this topic was forthright and open and she readily admitted that the answer was wrong. Further, her explanation that she had misread the question makes sense the question is written in small font, cramped in a small box, and the key word could follows a string of complex legal verbiage.2 As

demonstrated during the hearing, Chiles, like most non-lawyers, does not have a sophisticated understanding of legal terminology. Although defendant repeatedly has argued that Chiles deliberately lied in her answer to Question 6, he cannot provide any plausible explanation as to why Chiles would do so. Defendant has speculated, without any factual support, that Chiles wanted to be on the jury to get the juror fee.3 Chiles, however, explained that she had actually hoped that she would not be chosen for the jury. See Tr. at

Chiles explained that she had not read the back of the form, which explained more explicitly that it was the maximum penalty, not the actual sentence, that mattered for Question 6. Tr. at 20; Ex. A at 2. The fact that further explanation is necessary to address Chiless exact point of confusion confirms that her confusion on this question was not unusual. Defendant failed, however, to ask any questions of Chiles during his crossexamination to determine whether she actually wanted to serve on the jury to get the juror fee. Further, even if defendant established that Chiles wanted to earn the fee which he has not that fact, standing alone, would not establish a bias against defendant sufficient to satisfy McDonough 10
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22 (I was actually hoping that I didnt get picked). That statement was all the more credible because it was volunteered as a natural extension of her answer to the Courts questioning about whether she was nervous during jury selection, as opposed to being the product of a leading question. Further, the actual evidence of Chiless finances gives no reason to believe that Chiles was willing to lie to the Court simply to get the juror fee. Chiles had a paying job that she continued to do throughout the trial (see id. at 35) and gave no indication at the time of trial (or since) that she wanted to be on the jury to alleviate any financial pressure in 2011.4 Furthermore, if Chiles was concerned that her criminal history would prevent her from serving on the jury, then she would not have indicated anything about her criminal past on the Written Questionnaire, let alone describe a crime for which she had been convicted. Thus, not only was Chiless explanation credible, defendant has given no reason to discredit that explanation. b. Statements on the Written Questionnaire

Defendant fares no better with his claim that Chiles deliberately lied in her response to Question 27 on the Written Questionnaire. In fact, as Chiles
In response to Question 25 of the Written Questionnaire (attached as Exhibit B), Chiles indicated that her personal financial situation had gotten better over the previous four years. Ex. B at 3. 11
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provided a correct answer to Question 27, defendant cannot even show that her answer was inaccurate, let alone a deliberate lie. Question 27 asked whether Chiles or a family member had ever been arrested or convicted of a crime, and then asked for an explanation if the answer was yes. Ex. B at 3. Chiles correctly answered yes to the question, and then made an allusion to her 2008 DUI conviction. Id. Contrary to defendants repeated suggestions, the question did not ask Chiles to provide a list of every arrest or conviction for herself or her family, so there was nothing wrong or even incomplete about her failure to provide any additional information about her 1994 arrest,5 her 1999 narcotics conviction, or the arrests of any of her family members. As Chiles explained, she answered the question that was posed, not some other question. Tr. at 78 (It didnt state put all. I put one.). Given the question posed, it is unremarkable that Chiles did not volunteer additional information about her own or her familys criminal history. As she candidly acknowledged, she views her narcotics conviction as foolishness in her life that she does not discuss. Tr. at 22; see also id. at 92 (I never put that on anything. Its in my past, I dont put it down [on] anything.). Once she answered the question yes, there was no need to think further about the
Chiless answers at the January 6 Hearing with respect to her 1994 arrest for assault demonstrate that she simply forgot about the 17-year-old arrest during the original voir dire process. See Tr. at 23-24. 12
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question, so it is not surprising that she went no further. No one is likely to be eager to share embarrassing incidents from their life unnecessarily, let alone on a court form that was going to be shared publicly. Thus, defendant cannot even show that Chiless answer to Question 27 was wrong or incomplete, let alone the product of a deliberate lie. c. Statements During the Oral Voir Dire

Defendant also challenges the answers that Chiles provided orally to the Court about her criminal history. During the oral voir dire, the Court followed up with Chiles about her response to Question 27 on the written questionnaire, and Chiles said that her answer referred to someone else. October 4, 2011 Transcript (attached as Exhibit C) at 5. In fact, as Chiles was referring to her own DUI conviction in her written response to Question 27, her answer during the voir dire was not accurate. At the January 6 Hearing, Chiles explained that she was nervous and confused by the Courts question, and was not sure why she had not given a more full explanation of her criminal history. Tr. at 22, 83. Chiless explanation was again credible. She did not attempt to construct an elaborate excuse, but instead simply acknowledged her error. Tr. at 21. Further, her answer makes sense in light of the chronology of events. Chiles filled out the seven-page Written Questionnaire, which had 43 different questions with numerous sub-parts on Friday, September 30. It was not until
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the following Tuesday (October 4) that the Court posed the following question to Chiles: You were asked the question, Have you or a family member ever been arrested? And you gave an answer. Does that refer to you or to someone else? Ex. C at 5. Chiless confusion is understandable. She did not have the questionnaire in front of her, and there is no reason that she would have recalled the exact wording of Question 27, or even the response she had made four days earlier. The Courts question did not spell out her answer, presumably to avoid embarrassing her unnecessarily, nor did it explicitly refer to the portion of Question 27 that asked about convictions. Again, defendant provides no explanation as to why Chiles would lie during the oral voir dire. If she were trying to hide her criminal history, then she would not have disclosed her DUI conviction on the Written Questionnaire. Defendant has also repeatedly suggested that Chiles gave an incomplete answer during the voir dire because she did not volunteer information about her narcotics conviction. But Question 27 did not call for a complete list of her or her familys arrests or convictions, and neither did the Courts questions during voir dire about Question 27. Defendant cannot fault Chiles for not answering questions that were never actually posed to her. See Benabe, 654 F.3d at 781 (refusing to find McDonough violation where juror did not say that her son was involved in the Insane Deuces street gang in case involving Insane Deuces
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members because juror was not asked to identify gang); United States v. Estey, 595 F.3d 836, 841 (8th Cir. 2010). As a consequence, defendant has not met his burden of demonstrating that any of Chiless statements about her criminal history were intentionally false. 2. Chiles Did Not Intentionally Lie About Being a Civil Defendant

Defendant argues that Chiles also deliberately lied in responses to Question 28 of the Written Questionnaire and during oral voir dire when she indicated that she had never been a defendant in a lawsuit. Chiles, however, credibly explained that she did not view the eviction actions against her as being lawsuits (Tr. at 33-34), and thus defendant cannot substantiate this claim either. As was made clear throughout the January 6 Hearing, Chiles, like many non-lawyers, has a different understanding of some legal terms than lawyers do. For example, when asked if she had a plea agreement, Chiles responded with a description of the sentence she received. See Tr. at 26, 29. Similarly, Chiles did not regard the eviction actions against her as being lawsuits. While that view may not be accurate, there is no reason to doubt the sincerity of Chiless understanding of the term. The sequence of questions at the January 6 Hearing confirms Chiless good

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faith here. The Court first asked Chiles questions about all four eviction actions, although Chiles initially recognized only two of them from the title of the case (she recalled the other two during cross-examination when she was provided with the pertinent address). Tr. at 32-33, 136, 139-40. After Chiles discussed those eviction actions, the Court asked her about her response to Question 28, and Chiles again indicated that she had not been involved in a lawsuit. Id. at 33. Obviously, Chiles was not trying to hide the fact of the eviction actions at that point in the proceedingsshe simply did not view them as lawsuits. Id. at 33. Her tone and manner in response to the Courts questions on this point were forthright.6 Chiles explained herself more clearly after defense counsel

repeatedly challenged her with questions that assumed that Chiles knew that the eviction actions were lawsuitssaying You keep saying a lawsuit. I didnt know that this, when you go to court, was a lawsuit, I didnt know that. Its something new on me right now. Tr. at 135. Finally, defendant has established no reason why Chiles would have lied on her answer to Question 28. While Chiles was not eager to discuss the eviction actions, the Written Questionnaire did not ask her to do so. Ex. B at 3. There was no reason for Chiles to think that the fact that she had been sued in the
Notably, there had been no publicity about defendants claim that Chiles had lied about being a defendant in a lawsuit in advance of the January 6 Hearing, so there was no reason for Chiles to have anticipated this line of questioning in advance. 16
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1990's by her landlord would have had any meaningful effect on her chances of sitting on the jury. Indeed, Chiless repeated statements that she did not understand the relevance of the questions about the eviction actions highlights how far removed she viewed the eviction actions from this case. See e.g., Tr. at 107 (What this got to do with this case right here? understand. This dont have nothing to do with it.); 133. Thus, defendant has not met his burden with respect to any of Chiless statements about her status as a defendant in a lawsuit. 3. Chiles Did Not Intentionally Lie About Hiring a Lawyer This what I dont

Defendants suggestion that Chiles lied in response to questions about her relationships with lawyers is also wrong. During the oral voir dire, Chiles said that she had never hired an attorney and that no friend or relative of hers was a lawyer. Ex. C at 4.7 Those statements were both true. Chiles had an appointed attorney for purposes of the two criminal cases that resulted in conviction (Tr. at 26, 29) and did not have an attorney for the 1994 battery arrest (Id. at 24-25) or her various eviction actions. See Def. Hearing Ex. 4-7 (the Cook County Case Information Summary for each of the four cases indicates that

During the January 6 Hearing, defendant argued that Chiles had given false testimony about whether she ever had a lawyer. Tr. at 7. Chiles, however, was never asked whether she had ever had a lawyer, so that particular claim should be disregarded. 17

Chiles had no attorney). There is also no reason to doubt Chiless statement that she had no friend or relative who was an attorney. Accordingly, there is no basis to find that Chiles gave any incorrect answer here, let alone that she lied. 4. Chiles Did Not Intentionally Lie About Her Residence

Defendant also cannot substantiate his claim that Chiles lied about where she lived. Chiles indicated on the Written Questionnaire that she lived in the Woodlawn neighborhood of Chicago (which is also where the Clerks Office sent her Juror Qualification Questionnaire). Ex. B at 1. During the oral voir dire, Chiles provided answers to a series of biographical questions posed on a short form the Court uses, and indicated that she had lived previously in the Rogers Park neighborhood (which was true). Ex. C at 3. Her answer was responsive to a question on the form about where she had lived in the last ten years. See Tr. at 150-51. At worst, depending on the questions precise wording, her answer may have been incomplete. Defendant, however, cannot establish that her answer, if it was incomplete, was intentionally deceptive. Nothing about Chiless

reaction to questions about her residence during the January 6 Hearing gave any reason to believe that she had lied. Tr. at 150. Further, defendant cannot provide any plausible reason why Chiles would lie about this during the oral voir dire, particularly given that she provided a truthful answer on the Written
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Questionnaire and she knew that the Clerks Office had contacted her at her own residence already. Accordingly, defendant cannot meet his burden on this claim either. 5. Chiles Did Not Intentionally Employment Status Lie About Her

Defendant also challenges the veracity of Chiless answers about her employment status. In particular, Chiles answered No in response to Question 12 on the Juror Qualification Questionnaire, which asked whether she was now employed. Ex. A at 1. On the Written Questionnaire, Chiles indicated that she was Full-time employed in response to Question 6. Ex. B at 1. Any

inconsistency in those answers, however, is attributable to the fact that Chiles was actually self-employed, an employment status that did not fit neatly into the options on either Questionnaire. The Courts questioning during the January 6 Hearing illustrated the problem with Question 12 on the Juror Qualification Questionnaire. When the Court asked Chiles whether she was employed, she did not say yes or no. Tr. at 34. Instead, she answered self-employed, demonstrating that she viewed this status as being different from being employed by another. Id. The Juror Qualification Questionnaire, however, did not permit such an answer, so Chiles checked no, which was accurate in the sense that she was not employed by

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someone else. Ex. A at 1. Similarly, the Written Questionnaire did not give Chiles the option of indicating that she was self-employed, so she chose the option, Full-time employed, that best described her status. Ex. B at 1. Again, defendant cannot provide any reason why Chiles would intentionally lie about her employment status on the Juror Qualification Questionnaire. Her responses are easily explainable by the awkward way in which the questionnaires limited her ability to answer the questions posed. Accordingly, defendant should get no relief based on this claim either. 6. Chiless Testimony At the January 6 Hearing

Chiles explained her actions and statements in a calm and thoughtful way when the Court was conducting the questioning at the January 6 Hearing. In response to the Courts inquiries, Chiles was reasonably relaxed, gave full explanations to the Courts questions, and admitted freely when she made mistakes, either in the past or during the hearing itself. Her answers were clearly her own wordsshe had not been prepared by a lawyer or either side. As a result, the Court received an unfiltered account of her memory of what took place during the voir dire process. Chiles obviously acted differently during her cross-examination by defense counsel. The government expects that defendant will attack Chiless credibility by claiming that she was biased against him based on her behavior and
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statements during the cross-examination. There is little question that Chiles was suspicious of defense counsel, but there is also little question that those suspicions were warranted. Chiles observed that defense counsel was trying to make her look like a liar so that defendant could get a new trial (see e.g., Tr. at 107), and this accurately reflected what defendant has argued in his filings and statements. In fact, defense counsel had announced his belief that Chiles was a liar whose lies required a new trial in public filings and well-publicized extrajudicial statements well in advance of the January 6 Hearing. Those public attacks began immediately after news was published about Chiless criminal history. For example, on November 15, 2011, defense counsel was quoted as asserting that Chiles had lied under oath three times and that defendant should receive a new trial. See Chicago Tribune, New Trial for Cellini Sought, Nov. 15, 2011 (attached as Exhibit D) (In a telephone interview Monday evening, Cellinis attorney, Dan Webb, contended he does not think the request for a new trial even needs a hearing. She lied under oath three times, he said. The law is clear. The record is completely unequivocal!); see also Chicago Tribune, Defense Going For Mistrial in Cellini Case, Nov. 12, 2011 (attached as Exhibit E) (Cellinis attorney, Dan Webb, said he will argue in his mistrial motion that the womans criminal background means Cellinis conviction must be tossed out.)
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Given those public accusations, as well as the press scrutiny she had endured with respect to this issue, it is hardly surprising that Chiles was concerned about how she would be treated by defense counsel at the hearing, particularly as she had seen first-hand defense counsels attacks on the credibility of the governments witnesses at trial. Defense counsels decision to cross-examine Chiles in a similarly confrontational style apparently did nothing to alleviate those concerns. To the contrary, Chiles was clearly upset by defense counsels questioning, and vented her frustration at defense counsel for being, in her view, unfair. Thus, any hostility expressed by Chiles towards defense counsel was a direct result of the statements and positions taken by the defense after the trial,8 and should not be held against Chiles.9

Defendant has argued that Chiless statements to the media immediately after the trial demonstrate that she was biased against him. While such statements should not be considered, in any event, they hardly show any prejudice against defendant. To the contrary, the tenor of Chiless remarks was that the jury would have been happy to acquit him if the evidence had permitted it. See Chicago Sun-Times, Cellini juror: What Really Got Him Was the Wiretaps, Nov. 1, 2011 (attached as Exhibit F) (quoting Chiles as saying He did get two not guiltys....When we saw the evidence thats all we could do for him and that with respect to one of the counts of acquittal, we had trouble with it, but in the end we figured out he wasnt trying to threaten anybody.). Defendant has also tried to attack Chiless credibility by arguing that she would shade her testimony for fear of being prosecuted by the government for perjury. Chiles expressed no such concern over the course of the hearing, and it seems clear from the hearing that if Chiles had such a concern, she would have said something to the Court. Indeed, the fact that Chiles proceeded to answer questions without a lawyer belies defendants suggestion that Chiles feared prosecution. 22
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B.

Defendant Cannot Meet Burden Of Showing the Second McDonough Prong.

Defendant cannot satisfy the second McDonough prong either. No truthful response on any of the points that defendant cites would have resulted in Chiles being struck for cause. Nothing about her criminal history, experience with civil lawsuits, employment, residence, or relationship with lawyers demonstrates any kind of bias, let alone sufficient bias that she would have been struck. 1. Chiles Was Not Biased Against Defendant.

As an initial matter, there is no evidence whatsoever that Chiles held any bias against defendant during jury selection. She did not even know who defendant was, and had no knowledge about this case, when jury selection began. Tr. at 22 (Q: Had you ever heard of somebody named William Cellini before you came to this courthouse? A: No. Q: When you came to this courthouse, did you have any particular idea of what this case was about? A: No.); see United States v. Blackwell,436 Fed. Appx. 192, 196 (4th Cir. 2011) (defendant failed to satisfy second McDonough prong where, at most, juror knew defendants reputations in community but did not have personal dealings with defendants or have personal knowledge of defendants conduct). Indeed, some of the statements at issue here, such as her answers on the Juror Qualification Questionnaire, were made before Chiles knew that she might possibly be a juror

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in this case. The only other information that Chiles received about the case before she made her statements on the Written Questionnaire and during oral voir dire came from the Court or the Written Questionnaire itself, all of which had been screened to ensure that it was presented neutrally. There is, therefore, no basis to attribute any incorrect answers during voir dire to bias against defendant. It is clear her answers would have been the same, whatever the case. 2. Even if Chiles Provided Inaccurate Information During Voir Dire, Her Answers Would Not Have Supported a Cause Challenge

None of Chiless answers during voir dire would have supported a valid cause challenge, even if the Court had determined at the time that her responses were false, because there is no evidence that Chiles was not fair and impartial. First, even if Chiles had revealed the entirety of her own and her familys criminal history (which, of course, she was never asked to do), there would not have been any basis for this Court to exclude her for cause. The mere fact that she had been arrested and/or convicted of offenses that were completely unrelated to the crimes at issue here would not have suggested any bias, as demonstrated by the voir dire in this very case. Two potential jurors admitted to having been convicted of a crime, at least two more admitted to being arrested, and another 13 potential jurors admitted that a family member had been arrested for or convicted of a crime. Three of those jurors actually sat on
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the jury, without challenge by anyone.

One sitting juror (ultimately, an

alternate) was convicted of narcotics possession in the 1980s and sentenced to one year probation; another sitting juror admitted to being arrested in an alcohol-related incident; and a third juror admitted to being arrested. Defendant never asked the Court to follow up with any of those jurors to determine whether their past criminal experience would somehow make them biased, let alone made any challenge for cause on those grounds. Cf. Benabe, 654 F.3d at 782 (rejecting claim that defense would have moved to strike juror for cause if they had known juror previously worked as postal employee, where several jurors with connections to state and federal government agencies served on jury without defense objection); Arreola v. Choudry, 533 F.3d 601, 608 (7th Cir. 2008) (although declining to reach second McDonough prong, noting that defense did not pursue cause challenges for jurors who had same background as juror at issue during post-verdict proceedings).10 Second, there is nothing about Chiless experience as a defendant in

Defendants failure to ask questions about potential jurors criminal history likely was based on the commonly-held view that jurors who had been arrested or convicted of a crime would have a negative view of law enforcement. As the Second Circuit noted in Stewart, [i]f anything, a prospective juror with a family member who had been convicted of a crime would more likely be considered biased in favor of criminal defendants.); accord United States v. Caputo, 517 F.3d 935, 943 (7th Cir. 2008) ([I]t is usually the prosecutor who wants to excuse potential jurors with criminal records, lest they sympathize unduly with others facing the ordeal of a prosecution and at risk of imprisonment.). 25

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eviction proceedings that would have led to a strike for cause. Nothing she said about those experiences suggested any bias that would have influenced her as a juror in this case. Clearly, the eviction cases had nothing to do with defendant. Chiles disagreed with the plaintiffs in some of the proceedings (Tr. at 32-33, 13646), but that is neither unusual nor indicative of a bias toward defendant or the system, and would have provided no basis for this Court to conclude that Chiles could not be impartial. See, e.g., Stewart, 433 F.3d at 303 (affirming courts refusal to hold a hearing regarding jurors failure to disclose civil judgement against juror/spouse, noting it would not have supported a cause challenge). Indeed, there were at least three other jurors who sat on the jury that had been involved in lawsuits, and none of them were subjects of a cause challenge by defendant. Third, regardless of whether Chiles was employed or unemployed, her employment status would not be a basis to strike her. Fourth, while there is no evidence that Chiles had hired a lawyer or had a friend or relative who was a lawyer, such a relationship, standing alone, would not have been a basis to strike her. Fifth, if, during oral voir dire, Chiles had identified the current Chicago neighborhood where she resided, as opposed to the previous Chicago neighborhood where she resided, it would have made no difference; this Court
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would not have struck her for cause.11 None of these matters, on their own, would have caused the Court to strike Chiles for cause. Even taken together, the most the Court might have concluded from these matters is that Chiles was not the most meticulous or legally sophisticated of jurors in responding during voir dire.10 The Court would not have concluded, and could not have concluded, that Chiles held a bias for or against a party that rendered her unsuitable for jury service. The defendant has not met his burden to prove that, had Chiles given fully correct answers during voir dire, this Court would have excluded her for cause. Indeed, given his response to such answers when given by other jurors, defendant cannot even establish that he would have sought Chiless exclusion. As a result, defendant has not satisfied McDonoughs second prong. 3. There Is No Evidence that Chiles Harbored Any Bias that Prejudiced the Trial in this Case.

All the admissible evidence of the actual jury deliberation provides further
In any event, defendant cannot seek a new trial based on this or any other alleged inconsistency between Chiless answers on the Written Questionnaire and the oral voir dire, as any such inconsistency was apparent to defendant during jury selection, and he chose not to inquire further. See Benabe, 654 F.3d at 781 (defense counsels failure to follow up on inconsistency meant they lost their ability to seek a new trial on this basis); United States v. Arocho, 305 F.3d 627, 635 (7th Cir. 2002) (failure to follow-up on prospective jurors answer would not allow counsel to turn misunderstanding of vague answer into a deliberate lie by juror). Such a conclusion would be consistent with Chiless responses to other questions on the Written Questionnaire. 27
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proof that Chiles deliberated fairly and impartially, and provides no support for defendants claim that Chiles harbored a bias that infected the process in this case. First, as this Court repeatedly observed during the trial, this jury collaborated harmoniously. There were no indications of any problems. Second, this jury voted to acquit the defendant on two counts (indeed, the two counts that the defense trumpeted in public statements as the two most serious counts). This provides strong evidence that the jury carefully weighed the evidence and reached a reasoned verdict free of undue influence. United States v. Morales, 655 F.3d 608, 633 (7th Cir. 2011) (split verdict cited in upholding district courts decision to deny hearing on jurors post-trial allegation of premature deliberations); United States v. Siegelman, 640 F.3d 1159, 1187 (11th Cir. 2011) (emphasizing that split verdict undermined argument that juror misconduct affected the integrity of the verdict) (citing United States v. Dominguez, 226 F.3d 1235, 1248 (11th Cir. 2000)); United States v. Greer, 285 F.3d 158, 174 (2d Cir. 2002) (jurys complex verdict resulting in convictions on some counts and acquittals on others demonstrated its fairness) (quoting United States v. Aiello, 771 F.2d 621, 631 (2d Cir.1985)); United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990). Such a split verdict lends support to a conclusion that the jury carefully weighed the evidence and reached a reasoned
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verdict free of undue influence. Siegelman, 640 F.3d at 1187. In sum, defendant has not produced any evidence that Chiles labored under a bias that prevented her from being impartial to both parties, or that she provided false information during voir dire as a result of such bias. III. THE COURT PROPERLY LIMITED THE SCOPE OF THE JANUARY 6 HEARING Defendant also complains that the Court unduly limited his ability to cross-examine Chiles. Defendant, however, fails to recognize that post-verdict inquiries into preexisting juror bias are sharply limited, and appropriately do not encompass a wide-ranging exploration of issues that were not raised during the original voir dire process. Accordingly, the Court did not err in preventing defendant from asking the questions posed in his Offer of Proof. Defendants complaint about the Courts limits on his cross-examination must be assessed in light of the strict limits that are imposed on post-verdict inquiries into juror bias. Indeed, it is not clear that defendant was entitled to a hearing in the first place. In the Seventh Circuit, claims of intrinsic bias typically do not require an evidentiary hearing at all. See Benabe, 654 F.3d at 780 ([a] post-verdict inquiry into intrinsic juror influences is almost never justified); Arreola, 533 F.3d at 606 (hearings are required in post-trial juror context only in claims of prejudicial extraneous contacts, not to preexisting juror

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bias) (emphasis in original) (collecting cases). Where a hearing is appropriate, it is strictly limited to areas where there is clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial. Stewart, 433 F.3d at 302-303 (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983)). The [i]nquiry should end whenever it becomes apparent to the trial judge that reasonable grounds to suspect prejudicial jury impropriety do not exist. Stewart, 433 F.3d at 303. Further, the Court went beyond what was required by allowing defendant to cross-examine Chiles at all. The Seventh Circuit has expressly held that a challenging party is not entitled to cross-examination in the context of a hearing into potential juror bias. See Arreola, 533 F.3d 607-08 (finding no abuse of discretion in district courts procedures and rejecting contention that meaningful hearing required that juror be sworn in and that challenging party have an opportunity to cross-examine [the juror] or call witnesses); United States v. Meader, 118 F.3d 876, 878-881 (1st Cir. 1997) (upholding and commending district courts handling of post-trial hearing into juror bias, in which attorneys were given the opportunity to submit questions to the court, but were kept on the sidelines during the actual questioning to contain the formality of the proceeding); accord United States v. Calbas, 821 F.2d 887, 897
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(2d Cir. 1987) (holding that the trial court wisely refrained from allowing the inquiry to become an adversarial evidentiary hearing, so as to minimize intrusion on the jurys deliberations.). Nor was this Court obligated to ask the precise questions requested by the defendant. See Arreola, 533 F.3d 607

([Court] was under no obligation to ask the specific questions posed by [challenging party] during the post-verdict voir dire for potential bias, particularly when those questions (as [court] noted) would violate Rule 606(b).). In short, the Court had even more discretion to limit questioning in this hearing than the substantial discretion it enjoys during trial.11 All of the six objections that defendant raises to the scope of the January 6 Hearing involve topics that were either fully explored at the hearing or were not relevant, and thus defendants objections lack merit. A. Additional Questions About Arrests and Convictions

Defendant first argues that he should have been allowed to ask follow-up questions regarding Chiless criminal history, including questions relating to Chiless uncles conviction. R. 922 at 3-5. But the Court examined Chiles on her

Even in the context of the cross-examination of a non-juror witness, a district court . . . enjoys wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant. United States v. Clark, 657 F.3d 578, 584 (7th Cir. 2011) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)) 31

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criminal history at length, defense counsel was permitted further crossexamination, and all the relevant facts were established. Defendants primary objection relates to questions regarding Chiless uncles conviction. But under McDonough, the only relevant question for this Court is whether Chiles intentionally concealed information regarding her own criminal history because of some undisclosed bias against defendant. Information regarding Chiless uncles DUI conviction would not have formed the basis for a valid cause challenge. See Artis, 967 F.2d 1142 (affirming district courts resolution of allegations of undisclosed juror bias based on judges reasoning that truth would not have been grounds for a challenge for cause); Stewart, 433 F.3d at 303 (affirming district courts refusal to hold a hearing regarding jurors failure to disclose, inter alia, jurors sons prior arrest, noting that it would not have supported a cause challenge). Further, to the extent defendant was truly concerned about why she [Chiles] believed that her uncle had been treated fairly during his criminal proceeding, (R.922 at 4), defendant could have asked this Court to conduct follow-up during the voir dire. Benabe, 654 F.3d at 781 (holding that defendant could not seek new trial on alleged inconsistency where defendant did not ask any follow-up questions or ask the judge to ask them); accord Arocho, 305 F.3d at 635 ([T]rial attorneys had an opportunity to ask [juror] what he meant by in passing during voir dire, but
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chose not to. They cannot now sandbag the government by spinning the subjectivity of [jurors] response into a lie.). At bottom, defendant sought to question Chiles regarding her uncles conviction in an effort to discredit her. R.922 at 4 (arguing improbability that Chiles decided arbitrarily during voir dire to raise an uncles DUI arrest, as opposed to any other arrest or conviction applicable to herself or any other family member). But the Court (and defense counsel) asked Chiles multiple questions on the more direct issuenamely, why Chiles did not disclose additional information regarding her own criminal history and that of her family members in response to Question 27 on the Written Questionnaire and during the oral voir dire (Tr. at 21, 31, 79-87)and this Court had ample opportunity to gauge Chiles credibility, during both voir dire on October 4, 2011 and the January 6 Hearing. Based on the above, this Court did not err in barring defendant from asking additional questions relating to Chiles criminal history and her uncles conviction. B. Chiless Positive Drug Tests and Drug Use in 2008 and 2009

Defendant next contends that this Court should have permitted additional questioning regarding Chiless drug use. R. 922 at 5-6. This contention fails for at least three reasons. First, Chiles was not asked and did not answer any questionswhether in one of the two Questionnaires or during voir
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direrelating to her prior drug use. Thus, any inquiry into this subject matter went far beyond what is required under McDonough. A post-verdict hearing into potential juror bias is not held to afford a convicted defendant the opportunity to conduct a fishing expedition. Stewart, 433 F.3d at 306 (quoting Moon, 718 F.3d at 1234)). Defendant could have requested voir dire on this topic, but did not. Accordingly, defendant cannot seek a new trial on this basis. Accord McDonough, 464 U.S. at 550 n. 2; Benabe, 654 F.3d at 781. Second, even if Chiles had volunteered information concerning her prior drug use during voir dire, such information would not have supported a valid cause challenge. In this very case, the defense did not seek to strike the potential juror who had been convicted of narcotics possession, and did not even inquire into the details of that conviction. For this reason too, defendants argument fails. See Stewart, 433 F.3d at 303. Finally, defendants suggestion that Chiles intentionally lied about her prior drug use during the January 6 Hearing is baseless. During the hearing, Chiles readily admitted that she used cocaine occasionally during the period of her probation. Tr. at 30. In the face of this candid admission, it makes no sense that Chiles was attempting intentionally to conceal her prior positive drug

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tests from this Court.12 To the extent defendant wants to make some strained argument along these lines for whatever relevance it might have the Court admitted the records reflecting Chiles positive drug tests (R.922, Exs. 1 & 2) and had the opportunity to observe Chiles while she responded to questions about her prior drug use and drug testing while on probation. Tr. at 30, 100-01. C. Chiless Familys Criminal History

Defendant also argues that he should have been permitted to further explore Chiless answers and knowledge regarding her familys criminal history. As an initial matter, there was no need to explore the criminal history of any member of Chiless family other than her uncle during the January 6 Hearing because no question that was asked of Chiles during the original voir dire process required that she discuss any family members criminal history other than her uncle. Again, Question 27 on the Written Questionnaire did not require Chiles to list out her familys criminal history. So, she did not conceal anything about her daughters arrests (assuming that she was even aware of them), because she was never required to disclose them. Accordingly, the questions that the Court posed to Chiles at the defendants request about her

If anything, the fact that Chiles admitted using cocaine during her probationary period despite having apparently forgotten about her positive drug test serves to bolster her credibility (in that she made the admission despite having forgotten that there was likely independent evidence of her drug use easily accessible to the Court and the parties). 35

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familys criminal history (other than her uncle) were not relevant to whether she lied during the original voir dire, and the Court would have acted well within its discretion in not permitting any inquiry into this area. Furthermore, even if Chiles had disclosed all the information about her familys criminal history, defendant still would not have had a valid cause challenge, providing another reason why the Court could have refused any questions along these lines. See, e.g., Stewart, 433 F.3d at 303. But the Court did permit inquiry into this area, making defendants argument even more baseless. Defendant now faults the Court for not

permitting him to go on a fishing expedition to see what exactly Chiles meant when she responded no to the Courts question of whether her daughters had any prior difficulty with the law. Tr. at 31. Given that the cases against her daughters were quickly dismissed (see Exhibit G), it is not clear whether her daughters, in fact, had any difficulty with the law. Further, Chiles has already demonstrated that her memory of her own arrests was not perfect probing into what she knew and remembered about incidents involving her daughters for which she was not present and which occurred over seven years ago is precisely the kind of speculative probing that should be forbidden in this context. Based on all of the above, the Court permitted sufficient inquiry into the criminal history of Chiless family members.
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D.

Chiless Employment Status

Defendant next argues that Chiles gave inconsistent answers regarding her employment status on the Juror Qualification Questionnaire and the Written Questionnaire. R.922 at 7-8. As discussed above, however, any

inconsistency in Chiless answers reflected the limitations of the answers provided on the questionnaires, which did not permit her to check a box indicating that she was self-employed. In any event, the Court did ask Chiles questions about her employment history. Tr. at 34-35. And more to the point, Chiless employment status whatever it was would not have provided a valid basis for a cause challenge. Thus, the Court acted well within its discretion in barring further inquiry into this area. See, e.g., Stewart, 433 F.3d at 303. E. Chiless Residence

Defendant also contends that the Court should have permitted him to ask further questions of Chiles about where she lived for the ten years before trial. Defendant does not attempt to explain how Chiless answers to such questions could possibly have resulted in a challenge for cause, so no further inquiry was necessary. See Stewart, 433 F.3d at 303. Further, defendants efforts to pursue this line of questioning are also blocked by his failure to request follow-up questions on this topic during voir dire, as the allegedly inconsistent information
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was available to defendant at that time. See Benabe, 654 F.3d at 781 (defendant may not seek new trial based on undisclosed bias where defense counsel did not ask any follow-up questions or ask the judge to ask them); Arocho, 305 F.3d at 635 (same). F. Chiless Statements to the Press

Finally, defendant contends that he should have been permitted to question Chiles regarding her post-trial statements to the press. R.922 at 9. But as the Seventh Circuit has made clear, Rule 606(b) strictly limits the material about which a juror may testify. United States v. Berry, 92 F.3d 597, 601 (7th Cir. 1996). Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room. Webster v. United States, __ F.3d __, 2011 WL 6318327, at *8 (7th Cir. 2011). This prohibition extends to statements made by a juror to the press. See United States v. Febus, 218 F.3d 784, 795 (7th Cir. 2000) (Rule 606(b) bars Courts consideration of juror comments in newspaper article about jurys deliberations). Chiles statements to the press fall squarely within Rule 606(b)s prohibition. Thus, this Court appropriately barred

defendants request to question Chiles about these statements. Defendants brief focuses particularly on one alleged statement by Chiles
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to the press they should have known which Chiles apparently made in passing in the context of discussing her criminal history. Defendant contends that questioning relating to this statement might have been revealing as to Chiles perceptions of the parties and was relevant to whether she deliberately concealed her criminal background. R.922 at 9. Of course, only the latter issue is relevant to defendants motion. And, as discussed above, this Court conducted an extensive inquiry into whether Chiles deliberately concealed her criminal background. Thus, it was not error for this Court to bar any questioning relating to Chiles statements to the press. IV. CONCLUSION For all of the above reasons, the government respectfully requests that this Court deny defendants emergency motion for a new trial. Respectfully submitted, PATRICK J. FITZGERALD United States Attorney BY: s/Christopher S. Niewoehner CHRISTOPHER S. NIEWOEHNER JULIE B. PORTER J. GREG DEIS DEBRA RIGGS BONAMICI Assistant United States Attorneys United States Attorney's Office 219 S. Dearborn St., 3rd Floor Chicago, Illinois 60604 (312) 353-5300
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