KEARSE, Circuit Judge:

Defendant David Parse appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before William H. Pauley III, Judge, convicting him on one count of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2, and on one count of corruptly endeavoring to obstruct and impede the administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a). Parse was sentenced principally to 42 months' imprisonment, to be followed by three years of supervised release, and was ordered to forfeit $1,000,000 and to pay $115,830,267 in restitution. On appeal, he contends principally that he should have been granted a new trial on the ground of newly discovered evidence of juror bias; he challenges the district court's denial of his posttrial motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure for that relief, made jointly with his codefendants against whom the jury had returned verdicts of guilty, in light of postverdict evidence establishing that one of the jurors had lied on voir dire, concealed relevant information, and was actually biased against the defendants. The district court granted the new-trial motion of Parse's codefendants; but it denied the motion of Parse, finding that his attorneys either knew of the juror's misconduct prior to the verdict or failed to act with reasonable diligence based on the information they had, and that Parse had thus waived his right to an impartial jury. Parse also contends that the evidence was insufficient to support the jury's verdicts against him, and he challenges certain of the instructions given to the jury. Finding merit in Parse's challenge to the denial of his Rule 33 motion, but not in his sufficiency challenges, we vacate the judgment and remand for a new trial of the counts on which Parse was convicted.

I. BACKGROUND

Parse and several others were indicted in 2009 and were ultimately charged with one count of conspiracy to defraud the United States and to commit mail fraud, wire fraud, and tax evasion, in violation of 18 U.S.C. § 371, and with multiple substantive counts of tax evasion and other tax-related offenses in connection with the creation of a series of tax shelters "designed and marketed by [a law firm and an accounting firm] to take advantage of Internal Revenue Code ... loopholes so taxpayers could claim non-economic tax losses to avoid taxes they otherwise would have owed" (Parse brief on appeal at 7). Parse was a broker employed by an investment banking firm that executed transactions for implementation of the shelters.

In the spring of 2011, Parse was tried along with four of his codefendants: Paul Daugerdas and Donna Guerin, who were attorneys at the law firm; Denis Field, a member of the accounting firm; and Craig Brubaker, a broker at the investment bank that employed Parse. Following a three-month trial at which 41 witnesses testified and some 1,300 exhibits were admitted, the jury on May 24 returned a split verdict. It found Parse guilty on two counts — the substantive mail fraud and obstruction charges described above — and found him not guilty on the other four counts against him. (See Trial Transcript ("Tr.") 9153-54, 9159-63.) It found Daugerdas guilty on all 24 counts against him; found Guerin guilty on all 12 counts against her; found Field guilty on all 7 counts against him; and found Brubaker not guilty on any of the counts against him. (See id. at 9153-63.)

A. The District Court's Findings of Juror Misconduct

In July 2011, Parse, Daugerdas, Guerin, and Field moved pursuant to Fed. R.Crim.P. 33(a) for a new trial on the ground that one of the jurors, Catherine M. Conrad — "Juror No. 1" (or "Conrad") — had lied and withheld material information during voir dire and was biased against defendants. The motion was made some two weeks after the government disclosed to defendants and the district judge a letter it had received from Conrad shortly after the return of the verdict. (See Part I.A.2. below.) Following completion of the parties' submissions on the motion, including information from Parse's attorneys as to their earlier suspicions about Conrad (see Part I.B. below) and an evidentiary hearing, the district court, in a thorough opinion, see United States v. Daugerdas, 867 F.Supp.2d 445 (S.D.N.Y. 2012) ("Daugerdas"), found it "undisputed that Conrad lied extensively during voir dire and concealed important information about her background," id. at 451. The district court's description of the voir dire proceedings concerning Conrad and the information about her that was unearthed in Parse's attorneys' investigations, as to which there is no material dispute, included the following.

1. Conrad's Voir Dire

For jury selection, an initial venire of 450 prospective jurors had been assembled; "the Jury Department provided counsel with a jury roll identifying the prospective jurors in the venire, and listing a `Catherine M. Conrad' with a Bronxville residence." Daugerdas, 867 F.Supp.2d at 449. Preliminary procedures winnowed the number of prospective jurors from 450 to approximately 175; the panel of 175 was sworn in for voir dire. In discussing defendants' new-trial motion, the district court stated, quoting the transcript of the voir dire proceedings, that the court had

Daugerdas, 867 F.Supp.2d at 449-50 (emphases ours).

The district court had proceeded to ask further, more detailed, questions of the prospective jurors individually.

Id. at 450-51 (quoting voir dire transcript at 203-04 (emphases ours)). The court noted that it had offered prospective jurors the opportunity to come to the bench for a sidebar with respect to any information that they preferred not to give publicly. Several prospective jurors took advantage of that offer, but Conrad sought no such sidebar and provided no other information in response to these questions. See id. at 450.

The court found that Conrad in voir dire had lied about, among other matters, her own background and that of her husband.

Daugerdas, 867 F.Supp.2d at 452 (emphases ours); see also id. at 458 (finding that on the juror qualification questionnaire completed under oath prior to voir dire, Conrad "lied" in stating that "her permanent address was in Bronxville, New York," thereby enabling her to collect "collect[] an additional $765 in travel expenses based on her use of a Westchester zip code").

As to the concealment by Conrad of the fact that she had been educated as and practiced as an attorney, the court noted that

Daugerdas, 867 F.Supp.2d at 453. With respect to the fact that Conrad was seeking to practice law again, the court found that her "application for reinstatement," filed on the day before voir dire began,

Daugerdas, 867 F.Supp.2d at 454.

The court went on to recount other instances of Conrad's misrepresentations as to her criminal history:

Daugerdas, 867 F.Supp.2d at 454-55 (emphases added).

In Conrad's voir dire, she had been asked whether there were other members of her household and had responded that she lived with her husband, whom she described as being retired. When the court asked "What is he retired from?" Conrad responded, "He owns some bus companies." Id. at 450 (internal quotation marks omitted). The district court found that in fact "Conrad's husband, Frank J. Rosa (`Rosa'), is a career criminal," id. at 454, and that her response was a "fabrication... designed to conceal his criminal past," id. at 455:

Id.

2. Conrad's Posttrial Letter to the Government

The jury's verdict in the present case was returned on May 24, 2011. On May 25, 2011, Conrad wrote a letter to the Assistant United States Attorney who led the government's trial team (the "May Letter"), praising its performance at trial but lamenting the acquittals of Parse. The district court described the letter as follows:

Daugerdas, 867 F.Supp.2d at 452 (capitalization in May Letter) (italics ours). (See also May Letter at 2 ("Mr. Parse presented a conundrum — not for me, but for the other eleven.").)

Defendants' motion for a new trial stated that Conrad's May Letter had prompted them to investigate Conrad and that they thereby learned of her disciplinary proceedings and her status as a suspended lawyer by searching public records. The court eventually scheduled an evidentiary hearing with respect to Conrad's conduct (see Part I.A.3. below) and with respect to the timing of the parties' knowledge of her misconduct (see Part I.B. below).

3. The Evidentiary Hearings on Conrad's Conduct

The evidentiary hearing was scheduled for February 15-16, 2012. In the meantime, the court ordered Conrad to appear in person on December 20, 2011 — with the parties agreeing to participate by telephone — in order for the court to instruct Conrad as to her constitutional rights and to appoint an attorney for her if she could not afford one:

Daugerdas, 867 F.Supp.2d at 455. At the December hearing,

Daugerdas, 867 F.Supp.2d at 455-56.

On February 15, 2012, Conrad refused to present herself at the evidentiary hearing. She attended only after the court issued a warrant for her immediate arrest, and the U.S. Marshals took her into custody and brought her to court. See id. at 475. At the February hearing ("Hearing" or "Hr'g"), Conrad invoked her Fifth Amendment privilege against self-incrimination but, on motion of the government, was granted use immunity. See id. at 456 n. 2 (immunity from use of her "testimony or other information compelled under this Order, or any information directly or indirectly derived from such testimony or other information, ... except a prosecution for perjury, giving a false statement, or otherwise failing to comply with this Order." (internal quotation marks omitted)).

Daugerdas, 867 F.Supp.2d at 456 (footnote omitted) (emphases and brackets ours).

Id. Her responses to other inquiries into her past statements were similarly evasive. See id. at 456-57; id. at 457 ("She claimed repeatedly that she could neither understand the questions nor remember the facts.")

The court concluded that Conrad was "a pathological liar and utterly untrustworthy." Id. at 470.

Id. at 468-69 (emphases added). Conrad testified that she knew she could have made nonpublic disclosures to the court and the attorneys at a sidebar; but she said "`I know my disclosures definitely would not have allowed me to sit as a juror.'" Id. at 469 (quoting Hr'g Tr. 237). The court concluded that Conrad's answers concealing material facts were attributable neither to a desire to avoid embarrassment nor to honest mistakes:

Daugerdas, 867 F.Supp.2d at 469.

The court found "that Conrad was actually biased against Defendants." Id. at 471. It also observed that

Daugerdas, 867 F.Supp.2d at 471 (emphases ours).

The court discredited Conrad's self-serving claims that she was unbiased, crediting instead her overtly biased statements:

Id. (emphases ours).

B. Defendants' Knowledge or Suspicions as to Conrad's Misconduct

The memorandum of law in support of defendants' new-trial motion, which had been drafted largely by Parse's attorneys, see Daugerdas, 867 F.Supp.2d at 458 n. 3, suggested that defendants had had no inkling of any misconduct by Conrad prior to her posttrial letter to the government. The district court noted that the memorandum stated that

Daugerdas, 867 F.Supp.2d at 458. The court found that, absent any other information, "the clear implication of these statements was that they had no idea of Conrad's true identity and background until their post-verdict investigation following the receipt of Conrad's May Letter." Id.

The court sought additional information in a July 15, 2011 conference call with the parties. In that call, the government said it had been unaware of any of the facts set out in defendants' motion, and it questioned whether defendants' rights to challenge Conrad had been waived. The court asked whether any of the defendants had previously been aware of the facts set out in the new-trial motion. The attorneys for Daugerdas, Guerin, and Field promptly responded that they had had no prior knowledge of any of the facts that had come to light about Conrad's nondisclosures and misrepresentations. See id. at 459.

The responses of Parse's counsel were far less unequivocal and prompted the court to request further information from that firm:

Id.

Thereafter, Theresa Trzaskoma, Susan Brune, and Laurie Edelstein, partners in Brune & Richard LLP (or "B & R"), Parse's trial attorneys, "began to disclose in stages the full extent of their investigation into Conrad's background." Id.

Daugerdas, 867 F.Supp.2d at 460 (emphases ours).

Daugerdas, 867 F.Supp.2d at 460-61 (footnote omitted) (emphases ours).

Daugerdas, 867 F.Supp.2d at 461 (emphases ours).

Daugerdas, 867 F.Supp.2d at 461-62. The district court stated that at the February 2012 Hearing, Parse's attorneys

Daugerdas, 867 F.Supp.2d at 459-60.

In addition to the testimony from Parse's attorneys at the February 2012 hearing, the district court had before it a series of internal firm emails produced by Brune & Richard pursuant to an August 2011 order granting a motion by the government for discovery of documents relating to the firm's prior investigations of Conrad. Emails discussing information gathered by a jury consultant firm ("Nardello") reflected the B & R grading system for prospective jurors, in which a "D" signified somewhat unlikely to be pro-defense and a "Z" meant that no meaningful information was available. The district court noted that the following emails were exchanged among B & R personnel on May 12, 2011, i.e., the day on which jury deliberations began, which was the day after the parties were informed of Conrad's inquiry to the court about respondeat superior and vicarious liability:

Daugerdas, 867 F.Supp.2d at 463-64 (footnotes omitted).

The district court concluded:

Daugerdas, 867 F.Supp.2d at 464-65.

The district court noted that thereafter, at the February 2012 Hearing,

Daugerdas, 867 F.Supp.2d at 465.

The court noted that Trzaskoma said she and her partners met briefly on May 12 in Foley Square Plaza, just outside the courthouse but did not discuss the new information:

Daugerdas, 867 F.Supp.2d at 465-66.

C. The Granting of a New Trial to Daugerdas, Guerin, and Field

The district court, discussing the relevant Supreme Court cases, including McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) ("McDonough"), and courts of appeals cases, noted that the Sixth Amendment guarantees an accused the right to a trial by an impartial jury. "An impartial jury is one in which every juror is `capable and willing to decide the case solely on the evidence before [her].'" Daugerdas, 867 F.Supp.2d at 470 (quoting McDonough, 464 U.S. at 554, 104 S.Ct. 845). "Voir dire plays an essential role in protecting the right to a trial by an impartial jury," and as questioning on voir dire seeks to ferret out actual or potential biases on the part of potential jurors, a "juror's dishonesty during voir dire undermines a defendant's right to a fair trial." Daugerdas, 867 F.Supp.2d at 468.

Daugerdas, 867 F.Supp.2d at 468; see also id. ("where a juror deliberately conceals information that, if revealed, `might thwart her desire to sit' on the jury, any resulting conviction `cannot stand' because such conduct `obstruct[s] the voir dire and indicate[s] an impermissible partiality on the juror's part'" (quoting United States v. Colombo, 869 F.2d 149, 151 (2d Cir.1989) ("Colombo"))).

The district court noted that a potential juror should be discharged when there is actual bias, implied bias, or inferable bias. In this case, it found all three bias categories applicable to bar Conrad from serving on the jury. "Whether a juror is actually biased is a question of fact," Daugerdas, 867 F.Supp.2d at 470; and, as described in Part I.A.3. above, the court found that Conrad was in fact biased against these defendants, see id. at 471. "Implied bias," in contrast,

Daugerdas, 867 F.Supp.2d at 472 (internal quotation marks omitted) (emphases ours). "The nature, scope and extent of the lies a juror tells may, in and of themselves, demonstrate an undue partiality or bias.... Therefore, dishonest answers are a factor that can contribute to a finding of implied bias." Id. at 473. "Where a juror is impliedly biased, disqualification of that juror is mandatory." Id. at 472. The court concluded:

Daugerdas, 867 F.Supp.2d at 473 (emphases added). The court concluded:

Id. at 474 (internal quotation marks omitted).

Finally, the court noted that a juror may be discharged when bias is "`inferred'": "`Inferable' or `inferred' bias exists "`when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.'" Id. (quoting United States v. Greer, 285 F.3d 158, 171 (2d Cir.2002) ("Greer") (quoting United States v. Torres, 128 F.3d 38, 47 (2d Cir.1997) ("Torres"), cert. denied, 523 U.S. 1065, 118 S.Ct. 1399, 140 L.Ed.2d 657 (1998))). And "`once facts are elicited that permit a finding of inferable bias, then, just as in the situation of implied bias, the juror's statements as to his or her ability to be impartial become irrelevant.'" Daugerdas, 867 F.Supp.2d at 474 (quoting Torres, 128 F.3d at 47); see also Greer, 285 F.3d at 171. Here, the court concluded:

Daugerdas, 867 F.Supp.2d at 475 (emphasis added).

Daugerdas, 867 F.Supp.2d at 475; see also id. at 475-76 (recounting Conrad's contumacious and bizarre behavior throughout the posttrial proceedings). The court concluded:

Id. at 476. It noted that, although the Second Circuit had never found reason to overturn a verdict on the basis of juror nondisclosure under McDonough, here "the exceptional circumstances — deliberate lies engineered to create a fictitious, `marketable' juror — presented by this case warrant such extraordinary relief." Daugerdas, 867 F.Supp.2d at 468.

Having seen no reason to believe that Daugerdas, Guerin, Field, or their respective attorneys had knowledge or suspicions as to Conrad's misconduct prior to the end of the trial, see id. at 459, 462 n. 6, the court concluded that Daugerdas, Guerin, and Field were entitled to a new trial.

D. The Denial of a New Trial for Parse

In contrast, the district court concluded that Parse had waived his right to a new trial. Despite the argument that Parse himself had had no knowledge of Conrad's falsehoods, the court stated that it "bears noting at the outset that a defendant can waive certain rights through the actions of his attorneys, even if the defendant himself was unaware of the circumstances and actions giving rise to the waiver." Daugerdas, 867 F.Supp.2d at 476. The court concluded that "Parse ... is bound by Brune & Richard's actions and decisions at trial," id. at 477, stating that

Daugerdas, 867 F.Supp.2d at 479 (emphases ours). The district court noted that the McDonough Court, in making the above-quoted statement, had cited Johnson v. Hill, 274 F.2d 110, 115-16 (8th Cir.1960) ("Johnson"), in which the Eighth Circuit had stated as follows:

274 F.2d at 116 (internal quotation marks omitted) (emphasis ours). The district court stated:

Daugerdas, 867 F.Supp.2d at 480; see also id. at 476-80 (discussing additional cases from other circuits).

In the present case, the district court found that Parse's attorneys knew that Conrad was a suspended attorney — or at least they would have known had they exercised due diligence:

Daugerdas, 867 F.Supp.2d at 466 (emphases ours).

Daugerdas, 867 F.Supp.2d at 480 (emphases and brackets ours).

Daugerdas, 867 F.Supp.2d at 480 (emphases ours).

The court also stated that inconsistencies in representations made and positions taken by Parse's attorneys evinced a lack of candor that suggested they had actually known that Conrad was the suspended attorney:

Daugerdas, 867 F.Supp.2d at 480-82 (footnote omitted) (emphases ours).

The court found alternatively, that even if B & R did not have actual knowledge that Conrad was the suspended attorney, they would have known had they exercised due diligence:

Id. at 482 (emphases added). The court continued:

Id. at 482-83 (internal quotation marks omitted) (emphases ours).

The court rejected Parse's attorneys' explanation that they had relied on Conrad's voir dire answers in rejecting the possibility that Conrad was the suspended lawyer:

Daugerdas, 867 F.Supp.2d at 483-84 (emphases ours).

The district court stated that, most importantly, Parse's attorneys had enough information that they could have sought guidance from the court while they continued their investigation. See id. at 484.

Id. (emphases ours).

Daugerdas, 867 F.Supp.2d at 484-85 (emphases added).

II. DISCUSSION

On appeal, Parse contends that he is entitled to a judgment of acquittal on the two counts on which he was found guilty, arguing that the evidence at trial was insufficient to support his conviction. (See Parse brief on appeal at 73-82, 94-96.) Alternatively, he contends, inter alia, that the district court abused its discretion in denying his Rule 33(a) motion for a new trial on those counts, either (a) because he was deprived of his constitutional right to be tried before an impartial jury, or (b) because, if his attorneys waived that right by remaining silent despite juror bias, he was deprived of his constitutional right to effective assistance of counsel. (See id. at 19-73.) For the reasons that follow, we reject Parse's challenge to the sufficiency of the evidence (see Part II.B below), but we conclude that he should have been granted a new trial on the ground that he was deprived of the right to a trial before an impartial jury.

A. The Denial of Parse's Motion for a New Trial

Rule 33 of the Federal Rules of Criminal Procedure provides, in pertinent part, that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). Such a motion, if made within three years after the verdict or finding of guilty, may be based on "newly discovered evidence," Fed.R.Crim.P. 33(b); but such motions are "not favored," United States v. Diaz, 176 F.3d 52, 106 (2d Cir.) (internal quotation marks omitted), cert. denied, 528 U.S. 875, 120 S.Ct. 181, 314, 315, 145 L.Ed.2d 153 (1999); United States v. Spencer, 4 F.3d 115, 118 (2d Cir.1993) ("Spencer"); see, e.g., United States v. Slutsky, 514 F.2d 1222, 1225 (2d Cir.1975).

Evidence is not new if the defendant knew of it prior to trial, see, e.g., United States v. Mayo, 14 F.3d 128, 132 (2d Cir.1994) ("Mayo"), and is not considered "newly discovered" if, with the exercise of reasonable diligence, it could have been discovered before or during the trial, see, e.g., United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir.1992) ("Siddiqi") (the defendant must "make[] a showing that the evidence is in fact `new', i.e., it could not have been discovered, exercising due diligence, before or during trial"); Spencer, 4 F.3d at 119. A defendant is not entitled to remain silent while having knowledge of facts of an impropriety that would entitle him to relief and to invoke that impropriety only later if the result of the proceeding is unsatisfactory to him. See generally Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ("If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue.... [T]he contemporaneous-objection rule prevents a litigant from `sandbagging' the court — remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor." (other internal quotation marks omitted)).

Thus, a motion for a new trial based on a claim of newly discovered evidence generally should not be granted unless, inter alia, the evidence was in fact newly discovered after trial, and facts are alleged from which the court can infer the exercise of due diligence on the part of the movant to obtain the evidence prior to the end of the trial. See, e.g., United States v. Ragland, 375 F.2d 471, 475 (2d Cir.1967) ("To give an accused a second trial each time he doubts, after an unfavorable verdict, the objectivity of jurors, would seriously impede the processes of justice."), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968); United States v. Diaz-Albertini, 772 F.2d 654, 656 (10th Cir.1985) (where a juror failed to disclose his close ties with law enforcement officials and a new trial was granted to the defendant wife who had no knowledge of that nondisclosure, affirming the denial of a new trial to the defendant husband, whose attorney testified that when he was informed of the nondisclosure prior to trial, "he decided at th[at] time" that he would later raise the issue "should we have a conviction" (internal quotation marks omitted)), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 45 (1987); id. at 657 (a "litigant cannot transform a tactical decision to withhold the information from the court's attention into a trump card to be played only if it becomes expedient"); United States v. Bolinger, 837 F.2d 436, 439 (11th Cir.) (affirming denial of a new trial where defendant's attorney learned of juror misconduct during trial and "gamble[d] on the jury rather than inform[ing] the court of the problem in time to allow the court to determine if corrective action was possible prior to verdict"), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988); United States v. Morris, 977 F.2d 677, 686 (1st Cir.1992) ("We will not allow counsel to stand by quietly and gamble on a favorable verdict, only to complain when it turns out to be otherwise."), cert. denied, 507 U.S. 988, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993).

In sum, if the defendant knew prior to the end of trial that a prospective juror had given false voir dire responses and did not then reveal the disqualifying falsehoods or nondisclosures to the court, the "interest of justice," Fed.R.Crim.P. 33(a), generally will not require a new trial.

In addition, even if the evidence was newly discovered within the meaning of Rule 33(b), that evidence must, in order to warrant a new trial, be "material," not merely cumulative. United States v. Persico, 645 F.3d 85, 109 (2d Cir.) ("Persico"), cert. denied, ___ U.S. ___, 132 S.Ct. 593, 181 L.Ed.2d 435 (2011); United States v. Owen, 500 F.3d 83, 87-88 (2d Cir.2007) ("Owen"), cert. denied, 552 U.S. 1237, 128 S.Ct. 1459, 170 L.Ed.2d 287 (2008); see, e.g., United States v. Diaz, 922 F.2d 998, 1006 (2d Cir.1990), cert. denied, 500 U.S. 925, 111 S.Ct. 2035, 114 L.Ed.2d 119 (1991); United States v. Parker, 903 F.2d 91, 102-03 (2d Cir.) ("Parker"), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990). In the most common Rule 33(b) situation, in which the new evidence concerns the conduct of the defendant or the crime with which he is charged, the court is not to grant the new-trial motion unless the evidence would likely result in an acquittal. See, e.g., Persico, 645 F.3d at 109; Owen, 500 F.3d at 87-88; United States v. Diaz, 922 F.2d at 1006; Parker, 903 F.2d at 102-03. Where the newly discovered evidence concerns materially false information provided by a prospective juror in response to clear and unambiguous questions on voir dire, the court should grant the new-trial motion where the juror's false responses "obstructed the voir dire and indicated an impermissible partiality on the juror's part," Colombo, 869 F.2d at 151.

"[W]hen possible non-objectivity is secreted and compounded by the deliberate untruthfulness of a potential juror's answer on voir dire, the result is deprivation of the defendant's rights to a fair trial." Id. at 152 (internal quotation marks omitted).

Greer, 285 F.3d at 170 (quoting McDonough, 464 U.S. at 554, 104 S.Ct. 845 (other internal quotation marks omitted)). We noted in Greer that McDonough set out a "two-part test" for whether to grant a motion "for a new trial based on juror nondisclosure or misstatements.... First, the party must show that `a juror failed to answer honestly a material question on voir dire.' [McDonough, 464 U.S. at 556, 104 S.Ct. 845.] Second, the party must show that `a correct response would have provided a valid basis for a challenge for cause.' Id." Greer, 285 F.3d at 170.

This Court reviews the denial of a Rule 33 motion for a new trial for abuse of discretion. See, e.g., Greer 285 F.3d at 170; Persico, 645 F.3d at 109; Owen, 500 F.3d at 87-88; Mayo, 14 F.3d at 132; Siddiqi, 959 F.2d at 1173; Parker, 903 F.2d at 103. A court abuses its discretion if (1) it takes an erroneous view of the law, (2) its decision rests on a clearly erroneous finding of fact, or (3) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions. See, e.g., Owen, 500 F.3d at 87-88; United States v. Thorn, 446 F.3d 378, 391 (2d Cir.2006).

1. The Right to an Impartial Jury

The right of a defendant in a criminal prosecution to a trial "by an impartial jury" is expressly guaranteed by the Sixth Amendment to the Constitution. U.S. Const. amend VI. "[T]rying an accused before a jury that is actually biased" not only transgresses the express guarantee of the Sixth Amendment but also "violates even the most minimal standards of due process." United States v. Nelson, 277 F.3d 164, 206 (2d Cir.), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002); see, e.g., In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process.").

An impartial jury is one in which all of its members, not just most of them, are free of interest and bias. See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (an error "in the seating of any juror who should have been dismissed for cause.... would require reversal"); Parker v. Gladden, 385 U.S. 363, 366, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (per curiam) (despite state law authorizing conviction by an affirmative vote of 10 jurors, a new trial was required where at least two members of the 12-person jury were exposed to unauthorized communications; "petitioner was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors").

The voir dire of prospective jurors, who have been placed under oath, "is an important method of protecting a defendant's right to trial by" jurors who are impartial. Colombo, 869 F.2d at 151. A prospective juror who deliberately lies on voir dire is subject to criminal prosecution for perjury pursuant to, e.g., 18 U.S.C. § 1621 ("perjury" includes willfully making a false statement as to a material matter under oath), to possible criminal contempt pursuant to 18 U.S.C. § 401, and to possible substantial restitution claims by the government under 18 U.S.C. § 3663, cf. United States v. Hand, 863 F.2d 1100, 1101-07 (3d Cir. 1988) (where juror was convicted of contempt for misconduct during trial, which necessitated the vacatur of guilty verdicts, affirming order that juror, inter alia, pay restitution to the government in the amount of $46,850). See generally Colombo, 869 F.2d at 151. Where the juror has lied for the purpose of securing a seat on the jury — a mission apparently "so powerful as to cause the juror to commit a serious crime" — it "reflect[s] an impermissible partiality on the juror's part." Id. Such conduct

Id. at 151-52 (footnote omitted) (internal quotation marks omitted). Where the juror has deliberately concealed information, "bias" is to be "presume[d]." Id. at 152; see, e.g., McCoy v. Goldston, 652 F.2d 654, 659 (6th Cir.1981).

In the present case, the record amply supports the findings of the district court that Conrad repeatedly lied during voir dire, see Part I.A.1. above, and that she did so in order to be chosen as a juror, see Part I.A.3. above. Further, the court found that Conrad was in fact, impliedly, and inferably biased against the defendants, see Part I.C. above, and that if the court had known the truth, it would have dismissed Conrad for cause: "Conrad's misconduct demonstrates that she was incapable of being an impartial juror and this Court would have struck her for cause." Daugerdas, 867 F.Supp.2d at 470.

We thus have no difficulty with the ruling of the district court in the present case that the jury empaneled to hear the case against these defendants was not an impartial jury.

2. Principles of Waiver

We have considerable difficulty, however, with the district court's denial of Parse's Rule 33 motion for a new trial on the premise that Parse "waived his claim for a new trial based on Conrad's alleged misconduct" because, according to the court, "Parse's attorneys knew — or with a modicum of diligence would have known — that Conrad's voir dire testimony was false and misleading." Daugerdas, 867 F.Supp.2d at 476. Preliminarily, we note that Parse points out that the district court made no finding that he himself had any knowledge whatever about Conrad's misrepresentations in voir dire, and he argues that the district court erred in ruling that his right to trial before an impartial jury was waivable by his attorneys without his personal knowledge or acquiescence (see Parse brief on appeal at 43-46). However, we need not reach this issue here, see generally New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) ("[f]or certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, however, waiver may be effected by action of counsel"), because we conclude that the district court erred in its principal rulings with regard to Parse's attorneys. We conclude that to the extent the district court found that Parse's attorneys knew Conrad had lied, that finding is not supported by the record; and to the extent that the court ruled that Parse's right was waived because his attorneys failed to exercise due diligence to learn the facts, that ruling was based on an error of law.

"The classic definition of waiver" is the "`intentional relinquishment or abandonment of a known right or privilege.'" Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (emphases ours)); see, e.g., United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. 1019 (emphasis added). A right is not a "known right" unless one not only is aware of the abstract legal principle, but also knows the facts that make that principle applicable to him. See, e.g., Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ("Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." (emphasis added)). Waiver is not to be presumed. Indeed, "[t]here is a presumption against the waiver of constitutional rights...." Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (emphasis added); see, e.g., Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ("To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights."). The Government bears the burden of proving a defendant's waiver by a preponderance of the evidence. See United States v. Mastrangelo, 693 F.2d 269, 273-74 (2d Cir. 1982).

In Olano, the Supreme Court analyzed the availability of relief to a litigant under Rule 52(b) of the Federal Rules of Criminal Procedure, which provides that "[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention," Fed.R.Crim.P. 52(b). The Court made clear that although one may forfeit his right to relief when he fails to object or otherwise bring an error to the court's attention, not every failure to object or to advance a given argument constitutes a waiver:

507 U.S. at 733, 113 S.Ct. 1770 (quoting Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. 1019 (emphasis ours)). "Deviation from a legal rule is `error' unless the rule has been waived." Olano, 507 U.S. at 732-33, 113 S.Ct. 1770. If "a particular right is waivable," and if the defendant has "knowingly and voluntarily" made the choice to forgo that right, the fact that he did not have the benefit of that right "is not error." Id. at 733, 113 S.Ct. 1770 (internal quotation marks omitted). On the other hand, the Olano Court explained,

507 U.S. at 733-34, 113 S.Ct. 1770. A forfeited error may be corrected, at the court's discretion. (See Part II.A.3. below.)

a. The District Court's Findings of Knowledge

The district court appears to have found that Parse's attorneys had knowledge sufficient to waive Parse's right to an unbiased jury at at least two critical stages: first, prior to the start of the voir dire, and second, prior to the end of trial. The court found that

Daugerdas, 867 F.Supp.2d at 466 (emphases added). If this was intended as a finding that Parse's attorneys had sufficient knowledge that Conrad was the suspended attorney even prior to trial, it has several flaws.

First, the court's finding that the attorneys "knew" that the Conrad who was Juror No. 1 "lived in Bronxville" is contradicted by the court's own findings that Conrad's statements that she lived there were false. The court found that, in voir dire, "Conrad answered under oath that she ... lived in Bronxville `all my life.' (Trial Tr. at 203.) That ... was a lie." Daugerdas, 867 F.Supp.2d at 452. The court also found that in stating in her jury questionnaire that "her permanent address was in Bronxville, New York," Conrad "lied." Id. at 458. These findings foreclosed a conclusion that Parse's attorneys "knew" that Juror No. 1 lived in Bronxville. One cannot know a non-fact. Given that when Conrad said she "lived in Bronxville" she "lied," the attorneys could not "kn[o]w" she lived there.

Second, the record shows that the jury roll that was provided to the parties prior to voir dire did not contain sufficient detail to permit the attorneys to determine that Juror No. 1 was the suspended New York attorney. Although they might have learned the suspended attorney's street address and telephone number through the New York State Unified Court System's attorney registration website, the jury roll stated only the borough or municipality in which each potential juror lived; the jury roll did not disclose street addresses or telephone numbers. Further, the address shown for the suspended lawyer Catherine M. Conrad on the attorney registration website was in the Bronx, not Bronxville.

Third, as the district court found, the facts that the juror Conrad had a pending lawsuit and that her father was an immigration officer were revealed by Conrad in response to the court's general questions on voir dire. See Daugerdas, 867 F.Supp.2d at 450 (citing voir dire transcript at 105, 85). We have seen no evidence in the record that Parse's attorneys knew those facts "prior to the start of voir dire," Daugerdas, 867 F.Supp.2d at 466.

Fourth, although the attorneys had learned prior to voir dire that there was a suspended attorney named Catherine M. Conrad, the answers given in voir dire by the potential juror Conrad under oath were inconsistent with the juror Conrad's having been an attorney or having been suspended. Conrad stated, inter alia, that she did not work outside the home, that she was a stay-at-home wife, and that her highest educational degree was a B.A. And Conrad denied that she had ever been involved in an investigation by state licensing authorities.

The district court, after considering Conrad's misrepresentations as to her residence, her education, her profession, and her suspension, as well as her false negative responses to questions as to whether she or any member of her family had been convicted of a crime, found that

Given the record and the amply supported findings that Conrad lied comprehensively in voir dire and "presented herself as an entirely different person," id., any finding that Parse's attorneys knew prior to trial that Juror No. 1 was the same person as the suspended New York attorney is clearly erroneous.

Based on further information that became available to Parse's attorneys subsequently, the district court also found that those attorneys knew Conrad was the suspended lawyer just prior to the jury's commencement of deliberations. That information was (1) that, on the day before deliberations began, Conrad sent a note to the court asking whether the jury would be instructed on theories of respondeat superior and vicarious liability — terms that had not been raised during the trial; and (2) that, as a result of that peculiar inquiry, Parse's attorneys immediately conducted some additional investigation and obtained the Westlaw Report (or "Report") on Catherine M. Conrad the suspended lawyer. Although the Parse attorneys immediately conducted additional investigation into persons named Catherine Conrad, they said they did not think the inquiry by juror Conrad indicated that she was an attorney because the concepts she mentioned were not relevant to criminal law; they thought she might have been exposed to those concepts as a result of the pending personal injury action she had mentioned in voir dire. With respect to the Westlaw Report, however, the court found that the attorneys learned principally (a) that the suspended lawyer Catherine M. Conrad "used a Bronxville address, the same small village given for Juror No. 1 on the jury roll," and (b) "that living in the same household was a Robert J. Conrad," Daugerdas, 867 F.Supp.2d at 466. The court stated that "Trzaskoma had concluded that the Catherine M. Conrad in the Westlaw Report was the same person as Juror No. 1." Id. (emphases added).

We cannot agree that these or other aspects of the Westlaw Report — about the Catherine M. Conrad whom the Report stated it was "99" sure was an attorney whose license to practice was "SUSPENDED... CURRENTLY" — furnished sufficient evidence to carry the government's burden of proving that Parse's attorneys knew that the juror Conrad was that lawyer. Although the Report listed a Bronxville street address for the suspended lawyer (which of course could not be verified by comparison to the jury roll because, as indicated above, the jury roll provided no street addresses), the Report also showed two street addresses for the suspended lawyer in the Bronx and one for her in Brooklyn; the district court itself noted that the Report showed that the suspended lawyer "resided in Bronxville, among other places," Daugerdas, 867 F.Supp.2d at 480 (emphasis added). The listing of four different addresses for the suspended lawyer Catherine M. Conrad — even though one was in Bronxville — did not reveal that the juror Conrad was the suspended lawyer, given that Conrad stated on voir dire that she had "`lived at [her] current address'" in Bronxville "`[her] whole life,'" id. at 450 (quoting voir dire transcript at 203).

Nor did the Westlaw Report state that Robert J. Conrad was the father of Catherine M. Conrad the attorney. Rather, it described "Robert J. Conrad" as "Spouse." And even if that Robert J. Conrad was an immigration judge, the Westlaw Report's indication that he was the husband of the suspended lawyer Catherine M. Conrad would have meant that that Catherine M. Conrad was not Conrad the juror. The husband of Conrad the juror, according to her statements on voir dire, was retired; and he had retired from owning "`bus companies,'" Daugerdas, 867 F.Supp.2d at 450 (quoting voir dire transcript at 203).

In addition, the Westlaw Report said that the head of the household in which Robert J. Conrad and the suspended lawyer Catherine M. Conrad lived was "Ms. Edwina C. Conrad." In voir dire, Conrad was asked with whom she lived. She gave no indication that she lived with her father, or that she lived in a household that included anyone other than her husband.

Finally, in concluding that Parse's attorneys knew based on the Westlaw Report that Conrad and the suspended lawyer Catherine M. Conrad were the same person, the district court also referred to the fact that the Report said that Catherine M. Conrad "participated in a lawsuit involving `Saranta Foods Ltd., Unity Coffee,'" which was "pending in Bronx Supreme Court." Daugerdas, 867 F.Supp.2d at 480. In voir dire, Conrad had stated that she was the plaintiff in a pending lawsuit in that court. But the Westlaw Report mentioning "Saranta Foods Ltd., Unity Coffee" identified that company as a judgment "Creditor"; and none of the cases listed by the Report identified Catherine M. Conrad as a plaintiff.

In sum, although the court stated that Parse's attorneys' "suspicion that Juror No. 1 was not the person she represented herself to be during voir dire .... leavened into tangible evidence that Conrad was a monstrous liar," id. at 484 (emphasis added), that leavening did not occur until Conrad sent her May Letter to the government after the verdicts were returned. It was that postverdict letter that first disclosed the juror Conrad's (claimed) street address (against which one of the addresses in the Westlaw Report could be matched) and her telephone number (against which the telephone number shown for the suspended lawyer Catherine M. Conrad on the New York attorney registration website could be matched). And the monstrosity of her deliberate and purposeful voir dire deceit came to light in her statements to the court in the hearings conducted thereafter. As Conrad had "lied about virtually every detail of her life," id. at 473, almost none of the Westlaw Report information cited by the district court about the suspended lawyer matched the information Conrad had provided under oath during voir dire. The information in that Report did not support a finding that Parse's attorneys knew that Conrad the juror was the same person as Catherine M. Conrad the suspended lawyer.

The district court noted variously that "Trzaskoma believed" Robert J. Conrad "to be Conrad's father, the immigration judge," Daugerdas, 867 F.Supp.2d at 466 (emphasis added), that in the May 12 B & R internal e-mails "Trzaskoma expressed her belief that the suspended attorney Catherine M. Conrad and Juror No. 1 were the same person," id. at 463 (emphasis added), and "that counsel for Parse believed that Juror No. 1 was the suspended New York attorney named Catherine M. Conrad," id. at 480 (emphasis added). But the court ultimately concluded that "Trzaskoma, the Brune & Richard partner who oversaw and coordinated juror research, demonstrated her knowledge" that Conrad was the suspended lawyer "through the simple, declarative language of her e-mail on May 12, 2011: `Jesus, I do think that it's her,'" id. (emphasis added). Repeating that reaction by Trzaskoma to information in the Westlaw Report, see Daugerdas, 867 F.Supp.2d at 465, 465, 467, 480, 482, 482, 483, the district court concluded that that "vivid declaration that Juror No. 1 was suspended attorney Catherine M. Conrad," id. at 480 (emphasis added), was reliable proof that Parse's attorneys "knew," id., Conrad was the suspended lawyer because it was "tantamount to an excited utterance," id. at 482, which was "a reliable indication of her state of mind," id. We have several difficulties with this reliance on the Trzaskoma excited utterance to show that she "knew" Conrad was the suspended lawyer.

First, it was divorced from its context, quoted in Part I.B. above; "Jesus, I do think that it's her" was immediately followed by a request for further exploration: "Can you please track down that lawsuit?" Daugerdas, 867 F.Supp.2d at 464 (internal quotation marks omitted). Although a request for additional information does not necessarily belie knowledge, the fact that Trzaskoma continued to grapple with the possibility that juror Conrad and attorney Conrad were the same person — and discussed that possibility in general with her partners before coming to the conclusion that they were not the same person — indicates that Trzaskoma's "I think" utterance exhibited something short of actual knowledge.

Second, and more importantly, Trzaskoma did not say she knew Conrad was the suspended lawyer. The rationale for considering an "excited utterance" to be sufficiently reliable to be admissible in evidence for its truth, id. at 482, does not justify attributing to the utterance a fact that is different from what was uttered. Belief, surmise, and opinion are not the same as knowledge. Neither in context nor on its face did Trzaskoma's "Jesus, I do think that it's her" exclamation (emphasis added) express knowledge.

Third, the court's statement that "Trzaskoma's knowledge of Conrad's identity was far deeper than a mere `possibility,' as shown by her review of the 2007 and 2010 Suspension Orders and the Westlaw Report," Daugerdas, 867 F.Supp.2d at 482, is not supported by those documents. The suspension orders themselves showed only that the attorney Catherine M. Conrad had been disciplined, not that she was the person described in Juror No. 1's voir dire responses. Further, the Westlaw Report was a document that Trzaskoma testified she had not yet read when she said "I do think that it's her"; she had read only the paralegal's email quoting parts of the report that also suggested differences between the suspended attorney and Juror No. 1. Moreover, even had she read the report itself, its contents could not justify the court's attribution to her of actual knowledge that the suspended attorney Conrad was Juror No. 1. As discussed above, the Westlaw Report was rife with information that was inconsistent with the sworn voir dire statements of Conrad the potential juror, including different number of residences, different places of residence, different members of the household, and a different spouse. The profile of suspended attorney Conrad and the profile of the prospective juror who lied so comprehensively as to, inter alia, residence, level of education, occupation, and criminal or investigatory charges, thereby presenting herself as, in the words of the district court, an "entirely different person," id. at 473, were simply too disparate to support the imputation to Parse's attorneys of knowledge that those were profiles of the same person.

Finally, the court's finding that Trzaskoma's "I do think that it's her" excited utterance meant that Trzaskoma "knew" Conrad was the suspended attorney is also undercut by the court's finding that Trzaskoma "never shared the existence of the Westlaw Report or its contents" — quotes from which had prompted that utterance — "with [her law partners] Brune or Edelstein" in their "Foley Square conversation" that day, Daugerdas, 867 F.Supp.2d at 465. All three partners testified that they had thought it inconceivable that an attorney would so extensively lie during voir dire in order to hide her true identity, and that they thought Conrad's note to the court on the previous day inquiring about a possible instruction on legal principles that were irrelevant to a criminal case indicated that Juror No. 1 was not an attorney. Although the district court stated that the attorneys should have exercised a "modicum of diligence" to pursue the matter, id. at 476, and termed their failure a "tragic misjudgment," id. at 466, the record indicates that Trzaskoma's "I think" utterance did not reflect knowledge.

The district court stated that its conclusion that Parse's attorneys "knew" Conrad was the suspended lawyer Catherine M. Conrad prior to commencement of the jury's deliberations was supported by its view that Parse's attorneys had been "not entirely candid" in their cataloguing of the "facts that purportedly `came to light'" and gave rise to the new-trial motion. Daugerdas, 867 F.Supp.2d at 480-81. The court emphasized that they learned prior to voir dire that an attorney named Catherine M. Conrad had been suspended in 2010; and although the attorneys maintained that in light of the voir dire they concluded that the suspended attorney and the prospective juror were not the same person, the court found "unpersuasive" the attorneys' contention that "they reasonably relied on Conrad's voir dire answers." Id. at 483. Yet Conrad's answers, "about virtually every detail of her life," id. at 473, were given under oath. As the court noted earlier in its opinion, "[t]he sanctity of an oath is central to the sound administration of justice. An oath impresses on one's conscience the duty to testify truthfully." Id. at 448. And indeed, before the start of voir dire, when defense counsel suggested that the court should inquire further before excusing prospective jurors who claimed that serving on the expected three-month trial would cause them economic hardship, the court said "when somebody declares under penalties of perjury that they rely on commissions for their income, I wouldn't ask another question beyond that." (Voir dire transcript at 5.)

Virtually everything that came to light about Catherine M. Conrad the suspended lawyer was inconsistent with Conrad's voir dire responses given under oath. Although Parse's attorneys of course could have asked the court to pose additional questions to Conrad, we conclude that their failure to do so, or otherwise to pursue additional information sufficient to reveal that Conrad had pervasively lied despite her oath, did not provide an appropriate basis for the court's finding that they did in fact know the truth.

In sum, to the extent that the district court ruled that Parse waived his right to trial before an impartial jury because his attorneys knew that Conrad had lied during voir dire, we conclude that that ruling rested on a clearly erroneous finding of fact.

b. The District Court's Ruling that Knowledge Was Not Necessary

The district court ruled, alternatively, that Parse waived his right to an impartial jury because his attorneys failed to exercise due diligence to discover that Conrad was the suspended lawyer. It stated that

Daugerdas, 867 F.Supp.2d at 483 (emphases added). As discussed above, however, waivers must be knowing, intelligent acts, done with sufficient awareness of the relevant facts. A ruling that a litigant has "waive[d]" a right because he failed "to acquire sufficient information to make an informed decision," id., is based on an erroneous view of the law.

The district court sought to justify its modification of the waiver concept — i.e., expanding it to encompass circumstances where the litigant did not diligently acquire the requisite knowledge — by stating that such an expansion is needed in order for the judicial system to operate properly. It said:

Daugerdas, 867 F.Supp.2d at 482-83 (internal quotation marks omitted) (emphases added). This explanation reflects a further misapprehension of the law.

The district court's notion that "waiver[s]" must be imputed in order to avoid unnecessary waste of judicial time and resources ignored the related, and less rigid, principles of forfeiture. As the Supreme Court explained in Olano, a litigant who merely fails to make a timely assertion of a right, and does not knowingly and intentionally relinquish that right, forfeits his right to complain of that error; but a forfeiture does not bar the court from exercising discretion to correct the error if it affected the litigant's substantial rights. See 507 U.S. at 733-35, 113 S.Ct. 1770. That facet of the forfeiture concept exists because "[a] rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with... the rules of fundamental justice." Id. at 732, 113 S.Ct. 1770 (internal quotation marks omitted).

Rule 33 gave the district court discretion to grant a new trial in the interest of justice. The court's refusal to exercise that discretion on the ground that Parse had waived his right to complain of juror bias was based on errors of law and erroneous findings of fact.

3. Plain-Error Review

Parse and the amicus council of defense lawyers urge us to adopt a general rule that lawyers need not bring concerns about possible juror misconduct — including concerns about possible misstatements made during voir dire — to the attention of the trial court unless counsel actually know that such misconduct has occurred. We doubt that such a sweeping and absolute rule is appropriate; but in any event, we need not attempt to fashion an appropriate general rule in order to resolve the present appeal. Assuming that the district court was correct in its view that Parse's attorneys should have alerted the court to whatever suspicions they had about Conrad prior to the conclusion of the jury's deliberations, we conclude that the improper presence of Conrad on the jury — a forfeited error — warrants plain-error review and warrants reversal under that standard.

Under Fed.R.Crim.P. 52(b), which provides that "[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention,"

Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770 (other internal quotation marks omitted)). An "error" is an unwaived "[d]eviation from a legal rule." Olano, 507 U.S. at 732-33, 113 S.Ct. 1770 (internal quotation marks omitted). An error is "plain" if it is "clear" or "obvious." Id. at 734, 113 S.Ct. 1770 (internal quotation marks omitted). And an error affects substantial rights when it is prejudicial — that is, when there is a "reasonable probability" that the error affected the outcome of the proceeding. United States v. Dominguez Benitez, 542 U.S. 74, 81-82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (internal quotation marks omitted). The burden of meeting these criteria for plain-error review, and, if they are met, of persuading the court to exercise its discretion to grant relief based on the fourth factor, is on the defendant. See, e.g., Olano, 507 U.S. at 734-35, 113 S.Ct. 1770; Dominguez Benitez, 542 U.S. at 82, 124 S.Ct. 2333.

We have no difficulty in concluding that Parse meets his burden in the present case. Here the relevant proceeding was jury selection. The Sixth Amendment gave him the right to be tried before an impartial jury. Conrad, who lied extensively during voir dire, precisely in order to gain a place on the jury, was seated on the jury. As discussed in Parts II.A.1. and I.C. above, such false statements indicate an impermissible partiality, and the district court found that Conrad was actually, impliedly, and inferably biased. The court concluded that, had it known of those falsehoods, it would have dismissed Conrad for cause. It is beyond dispute that there was "error" within the meaning of Rule 52(b) and that the error is "plain" within the meaning of Olano and Johnson.

It is also clear on the present record — which includes both the remarkable May Letter that Conrad sent the government after trial and Conrad's statements and hearing testimony thereafter — that the seating of Conrad on the jury affected Parse's substantial rights, as "Conrad was actually biased against Defendants." Daugerdas, 867 F.Supp.2d at 471. In the posttrial investigation, Conrad revealed, inter alia, that she had lied on voir dire believing that the "[d]efendants ... were `crooks'." Id. at 456 (quoting Hr'g Tr. 210, 229). And, with respect to Parse in particular, the court found that in Conrad's May Letter, "[h]er bias ... bled through when she wrote that she `did fight the good fight' against acquitting Parse on any counts but eventually had to `throw in the towel.' Her choice of words shows that Conrad saw herself not as a fact-finder, but as a partisan for `Our Government.'" Id. at 471 (emphases ours).

In these circumstances — in which a juror aligned herself with the government, lied pervasively in voir dire for the purpose of avoiding dismissal for cause, believed prior to the presentation of any evidence that the defendants were "`crooks,'" and expressly mentioned Parse as a target of her efforts to persuade the other jurors to convict — a refusal to order a new trial for Parse would seriously affect the fairness, integrity, and public reputation of judicial proceedings. We reverse the district court's denial of Parse's motion for a new trial.

B. Parse's Sufficiency Challenges

Parse was found guilty of two offenses: mail fraud, in violation of 18 U.S.C. §§ 1341 and 2, and corruptly endeavoring to obstruct the administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a). He argues that he was entitled to a judgment of acquittal on both counts — obviating any new trial — on the ground that the government failed to prove the knowledge or intent elements of those offenses.

The mail fraud section makes it a crime to use the mails in furtherance of a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. § 1341. The "essential elements of a mail fraud charge" are "(1) a scheme to defraud, (2) money or property as the object of the scheme, and (3) use of the mails to further the scheme." United States v. Vilar, 729 F.3d 62, 91 n. 26 (2d Cir.2013) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 134 S.Ct. 2684, 189 L.Ed.2d 230 (2014). Because mail fraud is a specific intent crime, the government must "prove beyond a reasonable doubt that the defendant was guilty of a conscious knowing intent to defraud," United States v. Regan, 937 F.2d 823, 827 (2d Cir.1991) (internal quotation marks omitted), cert. denied, 504 U.S. 940, 112 S.Ct. 2273, 119 L.Ed.2d 200 (1992), and "that the defendant contemplated or intended some harm to the property rights of the victim," United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.1999) (internal quotation marks omitted). Federal taxes to which the United States is entitled constitute "property" within the meaning of the mail fraud statute. See, e.g., Fountain v. United States, 357 F.3d 250, 259-60 (2d Cir.2004), cert. denied, 544 U.S. 1017, 125 S.Ct. 1968, 161 L.Ed.2d 856 (2005).

Section 7212(a) makes it unlawful to "corruptly ... obstruct[] or impede[], or endeavor[] to obstruct or impede, the due administration of" the Internal Revenue Code. 26 U.S.C. § 7212(a). To act or endeavor "corruptly," within the meaning of this section, means to act or endeavor "with the intent to secure an unlawful advantage or benefit either for one's self or for another." United States v. Kelly, 147 F.3d 172, 177 (2d Cir.1998) (internal quotation marks omitted).

Parse contends that the government failed to establish the specific intent element of § 1341, i.e., his intent to defraud the Internal Revenue Service ("IRS") by depriving it of taxes owed, because the government did not show that he had understood the impropriety of claiming tax losses based on the tax shelter transactions in question (see Parse brief on appeal at 74), and similarly that it failed to establish the "`corruptly' element of § 7212(a)" because it did not show that he had "acted with the requisite `consciousness of unlawfulness'" (Parse brief on appeal at 95). Viewing the evidence in the light most favorable to the government, and crediting every inference that could fairly have been drawn in the government's favor, see, e.g., United States v. Vilar, 729 F.3d at 91; United States v. Biaggi, 853 F.2d 89, 99 (2d Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989), we reject both of Parse's sufficiency challenges.

"Since Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935), it has been settled law that for transactions to be recognized for tax purposes they must have economic substance." Gardner v. Commissioner, 954 F.2d 836, 838 (2d Cir.) (internal quotation marks omitted), cert. denied, 504 U.S. 910, 112 S.Ct. 1940, 118 L.Ed.2d 546 (1992). A transaction lacks economic substance if there was "no reasonable possibility that the transaction would result in a profit," United States v. Coplan, 703 F.3d 46, 92 (2d Cir.2012) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 134 S.Ct. 71, 187 L.Ed.2d 29 (2013), or if it "can not [sic] with reason be said to have purpose, substance, or utility apart from [its] anticipated tax consequences," Lee v. Commissioner, 155 F.3d 584, 586 (2d Cir.1998) (internal quotation marks omitted).

The trial record here included evidence that Parse was familiar with the economic-substance requirement. He was a certified public accountant, with a master's degree in business administration and years of experience working in financial institutions. He himself used a tax shelter of the type at issue here and received an opinion letter for his personal use, from the law firm that marketed the shelters and employed some of his codefendants. The opinion letter to Parse described the economic substance doctrine in detail; it noted, inter alia, that "a transaction must have economic substance to be respected for federal tax purposes" and that "a transaction which lacks economic substance beyond the creation of tax benefits and which is not imbued with tax-independent considerations is an economic sham without effect for federal income tax purposes." (Government Exhibit 54-1, at M-1 (emphasis added)).

The evidence from which a rational juror could infer that Parse knew that transactions he helped to execute for the tax shelters at issue lacked any profit motive included testimony from several witness. One client testified that he attended a tax shelter meeting in which Daugerdas described investments designed to avoid the client's having to pay taxes on his gains on the sale of certain stock. In that meeting, attended by Parse (see Tr. 6242), Daugerdas stated that

(Tr. 6244 (emphasis added)). Another client testified that, with respect to a tax shelter transaction involving foreign currency options, Parse "gave me I think a couple" of foreign currencies "to pick from. And it's whether — I mean, it was like, pick either one, it's not going to matter." (Tr. 3850.) Parse told him there was "a very extreme chance" that the investment could make money, "but generally speaking, it's going to amount to a big loss." (Id.) Another witness described conversations with Parse that he had as a partner in the accounting firm that marketed the tax shelters at issue. Parse explained various aspects of the use of short options transactions, and, as to the potential monetary outcomes, said there was a very minute possibility that a client could "hit a lotto," i.e., make a huge profit on his investment. When the witness had asked whether any client had ever "hit[] the lotto," Parse responded, in substance, "no, they watch these things pretty closely, and if anybody ever came close, they would move the market." (Tr. 6939-41 (emphasis added).)

We conclude that the record was sufficient to permit a rational juror to find that Parse knew that economic substance was essential to the IRS's acceptance of the tax shelter transactions as legitimate, and that he had the specific intent to participate in transactions that had no genuine objective other than depriving the government of taxes.

C. Other Contentions

Parse also contends that the district court's instructions to the jury with respect to his statute-of-limitations defense to the § 7212(a) obstruction charge were erroneous, and that with respect to both that charge and the mail fraud charge, the instructions were incomplete and deprived him of his defense that he implemented the tax-shelter-related transactions in good faith. We largely disagree.

As to the statute-of-limitations defense, the court instructed the jury that "`[i]n order for you to find any defendant guilty [of obstruction], the government must prove that the defendant you are considering or someone involved in the offense committed or caused to be committed an act of obstruction related to the obstruction count on or after' February 3, 2003" (Parse brief on appeal at 101 (quoting Tr. 8907) (emphases in brief)). Parse argues that this was erroneous in part because it allowed the jury to find the prosecution timely as to him on the basis of an act caused or committed by someone else "no matter how remote from the defendant." (Parse brief on appeal at 101.) However, the language on which Parse focuses was prefaced by the instruction that "[i]f you find that the government has proven all of the elements of the charge of a count beyond a reasonable doubt with respect to a defendant, you must also then consider for certain counts whether the statute of limitations for that count has been satisfied with respect to that defendant" (Tr. 8906 (emphasis added)). Thus, the jury was instructed that it could find the statute of limitations satisfied by an act caused by someone who was "involved in" (Tr. 8907) the offense that the jury, by hypothesis, had already found Parse committed. The government argues that as a whole, the court's instructions told the jury to find the crime was within the limitations period if an act was committed within that period "whether the act was committed by the defendant or someone acting together with the defendant" (government brief on appeal at 61 (emphasis added)), i.e., that that someone "must have been a co-schemer together with the charged defendant being considered" (id.). No doubt the court's instruction would have been clearer had these characterizations been added. We assume that the government, having urged that interpretation upon this Court, should have no objection if such a clarification is requested by Parse and included in the instructions at Parse's retrial.

To the extent that Parse also argues that, as a matter of law, the conduct of other persons — such as coconspirators or taxpayers filing returns that calculated their taxes based on losses generated by illegitimate tax shelters — cannot be considered in determining whether the statute of limitations has run on a charge of corruptly obstructing the administration of the tax laws, we leave that question for resolution, if necessary, on the basis of the evidence presented, arguments made, and instructions given at Parse's new trial.

As to Parse's other complaints, we conclude that the instructions, read as a whole, see, e.g., Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), were not erroneous. They dealt painstakingly with each element of each category of the offenses charged; the court instructed, inter alia, that "[g]ood faith is a complete defense to each of the charges in the indictment" (Tr. 8905); and the court instructed that, as to each defendant, the government had the burden of proving that he or she willfully committed the crimes charged and did not act in good faith (see Tr. 8897-98, 8905). The trial that was conducted was complex, see, e.g., Daugerdas, 867 F.Supp.2d at 467 ("the largest tax fraud prosecution in U.S. history"); 25 counts against one or more of five defendants were submitted to the jury (requiring the return of 58 verdicts), and the instructions were correspondingly complicated. The court was not required to introduce further intricacies by discussing scenarios for which there was no evidence in the record. The charges against Parse's codefendants have since been resolved; any potential confusion engendered by instructions catering to the complexity of the first trial is unlikely to recur with respect to the two counts at issue in the retrial of Parse alone.

CONCLUSION

We have considered all of the parties' arguments in support of their respective positions on this appeal, and, except as indicated above, have found them to be either moot or without merit. The judgment of conviction against Parse is vacated, and the matter is remanded for a new trial in accordance with the foregoing.

STRAUB, Circuit Judge, concurring:

David Parse is entitled to a new trial. I write separately because I believe he is entitled to a new trial whether or not his attorneys knew of the juror misconduct in this case.

The circumstances presented by this appeal are extraordinary. As the majority put it, this is a case in which one of the empaneled jurors, Catherine Conrad,

Maj. Op. at 120. Where, as here, there is an uncontroverted finding by the District Court that a juror who rendered verdict was actually biased and, indeed, perjured herself in order to ensure that she was seated on the jury, a defendant cannot waive his right to a new trial. Therefore, I join in all but Part II.A of the majority's opinion. As to that section, I concur only in the result.1

The right to a jury trial has been recognized by our courts as our "most priceless." Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). That right "guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors," since "only the jury can strip a man of his liberty or his life." Id. The seating of a biased juror who should have been dismissed for cause requires reversal. See United States v. Martinez-Salazar, 528 U.S. 304, 316-17, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).

To be sure, a criminal defendant who fails to make a timely objection to a juror may waive his right to later challenge that juror's impartiality. See United States v. Nelson, 277 F.3d 164, 219 (2d Cir.2002) (Straub, J., dissenting); United States v. Ragland, 375 F.2d 471, 475 (2d Cir.1967); see, e.g., United States v. Brazelton, 557 F.3d 750, 752-55 (7th Cir.2009) (finding defendant waived objection to biased juror when he expressly declined court's invitation to challenge the juror for cause).

But waiver is not without its limits. Some rights are "so fundamental to the reliability of the factfinding process that they may never be waived without irreparably discrediting the federal courts." United States v. Mezzanatto, 513 U.S. 196, 204, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (internal quotation marks and brackets omitted). Courts have an independent interest in ensuring the fairness and integrity of the criminal process, both with respect to each individual defendant but also so that "legal proceedings appear fair to all who observe them." Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (holding that, for this reason, courts may refuse to accept defendant's waiver of attorney's conflict of interest).

In holding that Parse waived his right to an impartial jury, the District Court relied on applications of the waiver doctrine in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) and Stern v. Marshall, ___ U.S. ___, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). McDonough involved a juror's "mistaken, though honest" response to a voir dire question in a civil product liability action. In a footnote, the Court remarked that if the information about the juror had been known to defendants or their counsel during voir dire, they "would be barred from later challenging the composition of the jury when they had chosen not to interrogate [the] juror." 464 U.S. at 550 n. 2, 104 S.Ct. 845. In Stern, the Court held that a litigant who repeatedly assured the bankruptcy court that "he was happy to litigate there" waived his right to challenge the bankruptcy court's authority to decide his claim for defamation. 131 S.Ct. at 2608. These cases are readily distinguishable because they do not concern a criminal defendant's Sixth Amendment right to trial by an impartial jury, nor was there a finding of actual juror bias.

However, the District Court rightly pointed out that the cases reflect the "disfavor of litigants who fail to act on information in their possession only to claim later that such information resulted in a violation of their rights." United States v. Daugerdas, 867 F.Supp.2d 445, 477 (S.D.N.Y.2012). The courts that have held that a criminal defendant's right to an impartial jury is subject to waiver have so concluded on the grounds that a contrary rule would permit a defendant to "gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct." United States v. Bolinger, 837 F.2d 436, 439 (11th Cir. 1988) (finding waiver without reaching merits of juror bias claim); see United States v. Dean, 647 F.2d 779, 782 (8th Cir.1981), on reh'g, 667 F.2d 729, 734 (8th Cir.1982) (en banc) ("[A]ppellant, by not bringing the question of juror misconduct to the attention of the trial court before the verdict was returned, thereby waived his right to a new trial."). The Sixth Circuit, on the other hand, has taken the view that a criminal defendant's right to trial by an impartial jury cannot be waived, explaining that the "presence of a biased juror, like the presence of a biased judge, is a structural defect in the constitution of the trial mechanism." Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 2001) (internal quotation marks omitted).

We have not yet defined the precise limits on a defendant's ability to waive an impartial jury, but that such a limit exists is beyond dispute. See United States v. Josefik, 753 F.2d 585, 588 (7th Cir.1985) ("[I]f the parties stipulated to trial by 12 orangutans the defendant's conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept."). In United States v. Nelson, we found that the defendants did not validly waive their right to an impartial jury when they agreed to the empaneling of a juror in order to accede to the district court's improper scheme to achieve a racially mixed jury. Nelson, 277 F.3d at 205-07 (noting "continued allegiance" to "powerful dicta that the right to an impartial fact finder might be inherently unwaivable"). I dissented in Nelson because the record in that case indicated that the juror demonstrated only potential bias during voir dire and the defendants expressly consented to the juror's seating. I explained that the presence of the juror on the jury, however improper, was not unwaivable error because it did not "fundamentally undermine[] the validity and fairness of the defendants' trial." Id. at 220 (Straub, J., dissenting).

But this is not a case involving potential bias, or in which a juror answered a voir dire question dishonestly out of embarrassment or shame, or merely expressed doubts about his or her ability to serve impartially. Conrad was actually biased against the defendant. As the District Court found, Conrad saw herself "not as a fact-finder, but as a partisan" for the prosecution who characterized her efforts to persuade other jurors against acquitting Parse as "`fight[ing] the good fight.'" Daugerdas, 867 F.Supp.2d at 470-71. Although Conrad denied that she was biased, the District Court found she was a "pathological liar and utterly untrustworthy" and that her statements "reflected a pre-existing bias" against the defendants. Id. I am not aware of a case involving more egregious juror misconduct than that found here, a finding which is undisputed on appeal. We have never upheld a verdict rendered under these circumstances, and to do so would be to make a farce of our system of justice.

I am sensitive to concerns about the risk of "sandbagging" on the part of defense counsel, as articulated by the District Court, see Daugerdas, 867 F.Supp.2d at 476-85, and in our prior cases, see Nelson, 277 F.3d at 220 (Straub, J., dissenting). But where there has been a finding of actual juror bias, such concerns, however legitimate, must yield to the preservation of the right which is at the very foundation of our constitutional dedication to a fair criminal trial.