DOJ-OGR-00021528.pdf

Case 22-1426, Document 78, 06/29/2023, 3536039, Page98 of 217 SA-352 Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 4 of 21 sexually abused as a child" as a basis for a broader hearing beyond inquiry into Juror 50. Maxwell Br. at 21, 49. II. Motion for a new trial on the current record Federal Rule of Criminal Procedure 33 provides 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). The parties agree that a defendant's Rule 33 motion premised on a juror's alleged nondisclosure during voir dire is governed by McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). Maxwell Br. at 22–28; Gov. Br. at 11. In McDonough, the Supreme Court held that to obtain a new trial on the basis of juror nondisclosure during voir dire, "a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough, 464 U.S. at 556; see also United States v. McCoy, 995 F.3d 32, 51 (2d Cir. 2021); United States v. Shaoul, 41 F.3d 811, 815–16 (2d Cir. 1994); United States v. Langford, 990 F.2d 65, 68 (2d Cir. 1993).3 The McDonough inquiry is restricted by Federal Rule of Evidence 606, which states: During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters. Fed. R. Evid. 606(b)(1). 3 The parties dispute certain contours of the McDonough test, including whether it requires a deliberately false answer. But at a minimum, the parties agree that the deliberateness of a juror's incorrect answer is relevant to this inquiry. Maxwell Reply at 13–14. Because, as explained below, the Court does not now resolve at this juncture whether Juror 50's answers on the questionnaire and voir dire merit a new trial, it need not and does not resolve those disputes pre-hearing. 4 DOJ-OGR-00021528