impartial indifferent jurors if only one juror is biased the defendant is denied his right to an impartial jury and united states versus parse this court tells us that the presumption that that the juror didn't raise his hand when asked if you had a conviction but didn't find it he did it to get on the jury that he wasn't trying to secure a seat on the jury to the contrary court found that he had he known that that would have got him off he information in fact practically speaking it would be nearly impossible to make a finding that a jerk had had concealed information from for the purpose of obtaining a seat on the jury because you'd have to almost read the juror's mind that based upon the jurors contrived refusal to disclose the full extent of his criminal history during the evidentiary hearing until faced with documentary evidence of the same the court concludes that juror number three failed to respond truthfully to the jury questionnaire in the courts for their respond truthfully to juror questionnaire edge questions as both pertain to his criminal history and his exposure to jail so that fail to answer truthfully i don't know how well stick could be interpreted about criminal history in rather i actually have the same problem when reading that original decision it seems like it's unclear whether or not the district judge is saying whether or not the juror was intentionally lying because at times it does say that she  is being untruthful and just a basic reading of the juror hearing from june th and from june th it's i don't think it can be reasonably questioned whether or not he's intentionally lyin throughout the jury hearing it's brought up that he committed this burglary rd he is given an opportunity to address it he says he's innocent of it as soon as he says that he's innocent of it i think there might a been a question also about whether or not we thought that the actual hearing itself was biased towards the defendant at that point in time the defendants did not have an opportunity to cross examine the juror bradford was just a court doing inquiry at that point after he had that he was innocent defendants stood up and said well we have a confession from his burglary he's saying that he absolutely did this and when confronted with his confession he admitted yeah i did that  cross examine the witness again this was in relation to another burglary a burglary nd that looked identical to the ones that mr next in mr mccoy were facing with such bizarre coincidence as it was breaking into houses using b b gun sealing guns jewelry and drugs we were even given an opportunity to be evil to cross examine him about this he denied any knowledge just like he did with the other stolen property felony where he did the carjacking until we showed him his confession again he was lying throughout he told he was told this record puts a lot of significance on the fact that he didn't lie for the purpose of securing a seat a jury which would seem to think that that doesn't matter so much i think and i want to know if you agree i think it is in fact a lot of you have been in this are going anyway that you have to have lied for the purpose of getting on the jury i think that there's two ways to look at that i think that there's well st of all there's four real ways to look at it you can look at it through the mcdonogh test which i think is very specific to civil cases and there's an additional inquiry that can be used in a criminal case but because the th amendment is implicated i think that it goes straight to presumed bias in that based on the the very identical crimes that mr bradford went to prison for and denied ever having gone to prison for where he did the exact same kind of burglary that was alleged in the indictment and there's inferred bias just from looking at of his testimony it just wasn't believable specifically and i think that the nd portion of that is asking whether or not will did he try to get on this jury he's asked very specifically seven different times so did you want to be on this jury yes do you want to be  who they also ran his criminal background and they saw that he was the other nd african american male out of a veneer of eighty three dollars there were only two american males that had a criminal history as well as a felony they immediately say oh this guy has a felony the defense as well did you run the other jerk specifically mainly because well he's african american too did you run him too and they said that that was an appalling question they didn't explain why they had run the one african americans are and that's why also it's many events and it seems to me if we're going to do what you're asking us to the maybe the better course would be to run everybody's rap sheet before they hit the courthouse for jury duty so we can make sure that convicted felons don't somehow get onto a jury or none of the yes because i don't think all men are not of them means that if it turns out that somebody slipped on you're saying then neutron automatic i mean that would seem to me to be a huge windfall i don't think that in every case should happen because i think also in yes or no it's an abuse of discretion review on whether or not that is accurate i think if you look at the juror hearing it's very clear that this person was not only said he was trying to get onto the jury six times but that there's no any other explanation for why he lied about his not only his phony convictions but other stuff too is the key to expel nation he said he didn't understand question not that there was  had been on at least five occasions where he had gone to jail at least five times and he said he didn't understand what a defendant was that kind of ludicrous conclusion how does a man sit on a jury and determine whether or not someone gets one hundred and fifty years when he doesn't even know who's on trial when they say this person of the defendant when he himself was a defendant five times and went to prison wasn't he sitting in prison saying i don't really understand why i'm here because i don't even know what a defendant has begun through yes i think that's actually true and i think there's i think it's unclear about the remainder of his criminal history because the criminal history that we had foiled was inconsistent with the d c jass reports that came back and i think before that like during jury selection from we did make subpoenas post verdict trying to get that information because we knew that parker had already been run and when we did that those subpoenas were caution that's the nd point of my brief was that it clearly meets the nixon standard the subpoenas for the d c jess's for the other person that other people the jurors that could have been ran and the court made that determination to when they made us sign affidavits saying we never ran anyone prior to the trial starting the only problem was that i signed one he signed on my scene colleagues signed one which we accept their representations the other co counsel never signed one and the f b i was sitting at that desk presumably they were the ones that did the initial research and we were given those and they didn't sign affidavits like we had to be able to explain and that's why we sought subpoenas that ultimately came the chambers are the lies that were stated by the juror made in order to get a seat on this jury and judge woolford specifically in her very detailed sixty five page written decision held that he did not live for the purpose of securing a seat on this jury and that's what this comes down to was not whether there was a misstatement not whether there was a false statement and not even just whether there was an intentional false statement whether a misstatement or false or intentionally deliberate lie demonstrates bias and that's the crux of any th amendment claim that the defendants were denied their right to an impartial jury and they have in this case failed to demonstrate the journey over three was biased against them but as judge parker said before i mean this statute that we borrow such a person from serving on a jury right credibility it would seem that a conviction is what disqualifies you from serving on a jury because you are not trustworthy you're biased well i don't think there's if that were the case then there would be a per se rule that said anytime a felon is on a jury there has been demonstrated per se bias and i don't think that's what this court precedents have said i think in greer and in parse this court has said there is no per se rule disqualifying a juror every time there's a false statement they have also a false statement is one thing conviction is what we're talking to false statement about a conviction is a false statement about knowing law enforcement officers or a false statement about having gone to law school that might be a false statement and it might then lead to disqualification but a false statement about your own criminal convictions that is going to get you off a jury want to actually it will get you off the jury automatically as it did the other juror when it was discovered that there that your had a felony conviction you got him off the jury in advance that's correct but this court has never held and in fact i'm not aware of any nd circuit or other  to have held that strictly based on a jersey prior felony conviction he subsequently discovered felony conviction that that most invalidate and otherwise i wouldn't effect somebody is a convicted felon filters reflect an implied by an implied bias against whom i think that's an important question is that who is the person allegedly biased against and we're the argument here is that these defendants this is a bias conclusively presumed as a matter of law and doesn't the fact that there's a statute that automatically gets you balanced sort of support the notion of there's a presumed bias as a matter of law i don't think the statute that disqualifies convicted felons states that it's because they're biased the statue list several categories of individuals that are statutor disqualified it does not say and i have not read anything in the legislative history of that section that the statutory disqualifications are based on a finding a legislative finding that these disqualified individuals from watching this man that he did not want to be asked questions about his criminal history that his criminal history was some thirty years old that he had difficulty recalling it understanding certain questions that were asked of him and of well he'd been arrested multiple times there was some sort of leaves with the assertions in the record about five times in jail there's no jail records that were put in forth before this court showing he's been in custody and served five senses of jail there's nothing like that just like there's no there's been nothing to demonstrate that we have that we run criminal histories on the african american jurors those are suggestions and loose representations based on what the record is and are not supported by the record here the the crux of this your honor is that if they cannot too defense counsel is unable to move in a hearing by us if the crux of the th amendment right to be tried by an impartial jury is bias of jurors then no proving statutory disqualification is not the same as well they have not been demonstrated to be biased so as to deprive demonstrate you are that's what the this court's precedent have set forth that it is not strictly whether or not there has been a lie or a false statement or a statutory disqualification this court has said that the crux of the th amendment analysis is bias and if there has not been bias demonstrated then there is no deprivation of the th amendment right to a fair trial and in this case judge wolf when in great detail in reviewing and analyzing the testimony and the a political law and her finding that juror number three did not live for the purpose of no your honor i'm asking you to apply the mcdonagh test as this court set forth in parse and in career and in length for that it is not strictly a false statement by a juror it is also the motive underline that false statement and whether that demonstrates bias and if it does not then a impartial jury a right to an impartial jury has not been if the defense raise the st step back in front of the district court then the district court will in fact have to pass on whether or not that statute applies to the senses of these defendants which were imposed prior to the enactment of the st day it would no you are the i would not agree that the st act applies but i would not object to and i think it's important that rather than passing at the appellate level that st that issue be argued and passed on at the district court level that that count two is vacated and for sentencing so that hypothetical then you would agree that the court can consider in the st step back as a bar just stacking the other nine hundred and twenty four c i think we're going to be getting to that issue judge whether or not it's appropriate for the court to consider the st up act at the recent scene so exactly the arguments that we would make in opposition to that i'm not going to case and this district court completely mixed them up and applied the wrong standard and that needs to be corrected the purse case does say and it follows actually  colombo which also says that there is a presumption of bias whenever a juror intentionally gives incorrect information about a material matter there is a presumption of bias and it it does say that and and there's a presumption of bias and it doesn't say it's particularly against anyone that it can be it can be inferred against one party or another depending on what the jurors said i guess it would could be considered again a bias against the party loses eventually depending on what the jurors said they would have to look at the context of what the jurors said it would depend on the circumstances but that's a very good question it could be both and in fact if i could if i could just give you an example the court in dire it and if you could read to the the the the dissenting opinion bon what what that would what the judge said and bony was what that shows is that this is a person who's completely untrustworthy who and who does who has no care for the law whatsoever and should not be sitting on a jury and ultimately that hurts the defendant ultimately the defendant loses when that happens but because he's the one going to prison i mean the government is hurt by it too and the people are hurt by it if the defendant is acquitted but but ultimately if the defendant goes to prison the defendant certify that but but just reading it everyone can be hurt by it but but just if i could hear your honor from ph fifty night of my brief i was talking about i'm sorry judge and i'm sorry if you could speaking of the michael  st of all we don't know we can't read the person's mind so we don't know we don't know why why he lied st of all if for with respect to this gentleman in our case we don't know we don't know why he why he why it why he lied in this case we don't know why he sat there and didn't tell us anything about him maybe he's heard of our clients maybe he knows all about them he's heard about them on the streets and he wants to put them away we don't know hearing on this i mean and there's nothing to suggest any of the things you've just talked about right there is nothing to know because we can't i and mine know so i don't think we should and it is anything else no and i would rather than other than i would ask the court to just carefully review the transcript as as as as mr mr whitmore pointed out this is a person who said several times he wanted to sit on the jury and that was at the hearing that was not during the board years that was my confusion for m