cellini.juror hearing.brief.final

8/3/2019 Cellini.juror Hearing.brief.final

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

) No. 08 CR 888-4

v. ) Hon. James B. Zagel

)

WILLIAM F. CELLINI, SR. )

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

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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 ofMcDonoughs 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. SeeUnited 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 two-

prong standard, the Supreme Court rejecteda 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

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 constitutesper 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).

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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, inDyer 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 alsoUnited 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, theDyer 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 boastedabout to the jury. All of these facts, considered as a whole, create

destructive uncertainties regarding [the jurors] ability to render

a fair verdict.

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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 SATISFYMCDONOUGHS

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

2 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.

3 Defendant failed, however, to ask any questions of Chiles during his cross-

examination 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

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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 (seeid. 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

4 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.

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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 alsoid. 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

5 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.

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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. SeeBenabe, 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

6 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.

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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? This what I dont

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

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

7 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.

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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 Lie About Her

Employment Status

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

8 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.).

9 Defendant has also tried to attack Chiless credibility by arguing that shewould 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.

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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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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, 136-

46), 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 Biasthat Prejudiced the Trial in this Case.

All the admissible evidence of the actual jury deliberation provides further

11 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).

10 Such a conclusion would be consistent with Chiless responses to other

questions on the Written Questionnaire.

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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

11 Even in the context of the cross-examination of a non-juror witness, a districtcourt . . . 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) (quotingDelaware

v. Van Arsdall, 475 U.S. 673, 679 (1986))

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criminal history at length, defense counsel was permitted further cross-

examination, 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. SeeArtis, 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. SeeStewart, 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

12 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).

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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 AttorneysUnited States Attorney's Office

219 S. Dearborn St., 3rd Floor

Chicago, Illinois 60604

(312) 353-5300

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