DOJ-OGR-00021535.pdf

Case 22-1426, Document 78, 06/29/2023, 3536039, Page105 of 217 SA-359 Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 11 of 21 First, the news article upon which the Defendant relies does not warrant a hearing. Baker, 899 F.3d at 130. The article includes a short, non-detailed mention of an anonymous juror. As the Second Circuit recently held in affirming the denial of a hearing after a high-profile trial, "the unsworn, uncorroborated statements that one unidentified juror made to a magazine reporter do not constitute the 'clear, strong, substantial and incontrovertible evidence'" of misconduct that requires a hearing. United States v. Guzman Loera, 24 F.4th 144, 161 (2d Cir. 2022) (quoting Moon, 718 F.2d at 1234). Another court in this circuit held that a New York Times article that, in a single sentence, alleged misconduct by an unidentified juror was insufficient to justify a hearing. United States v. Bin Laden, No. S7R 98-CR-1023 (KTD), 2005 WL 287404, at *2 (S.D.N.Y. Feb. 7, 2005), aff'd sub nom. In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93 (2d Cir. 2008) ("This single sentence, an unsworn snippet of hearsay within a newspaper article, is far less substantial than the sworn affidavits present in cases where evidentiary hearings have been ordered."). Other courts have also concluded that unsworn, hearsay, and/or anonymous reports of juror misconduct are not the clear, strong, and nonspeculative evidence required for a hearing. See, e.g., King v. United States, 576 F.2d 432, 438 (2d Cir. 1978) (affirming the denial of a hearing where the defendant presented "weakly authenticated, vague, and speculative material as to one juror," even where that juror was not anonymous); United States v. Wilbern, 484 F. Supp. 3d 79, 87 (W.D.N.Y. 2020) (finding a "double hearsay" report of misconduct inadequate to justify a hearing); Stewart, 317 F. Supp. 2d at 438 (denying the defendant's request for an evidentiary hearing where the defendant's support, including post-trial media interviews, "amount[s] to little more than hearsay, speculation, and in one instance, vague allegations made by a person who refused to identify himself"). Accordingly, the New York Times article is an 11 DOJ-OGR-00021535