DOJ-OGR-00009151.pdf

Case 1:20-cr-00330-PAE Document 615 Filed 02/24/22 Page 32 of 49 conduct which was similar to the charged offenses such that the juror may have felt that she was "confronting the legality of[her] own past acts as well." Torres, 128 F.3d at 48. While the Second Circuit held that the district court did not abuse its discretion in inferring bias under the circumstances presented there, it also made clear that the district would not have erred in declining to infer bias. Id. Torres thus underscores the ample discretion which district judges have in striking jurors for cause—discretion which this Court has properly exercised not to infer bias where jurors have disclosed being victims of sexual abuse or harassment. The defendant has failed to establish inferred bias. II. The Court Should Schedule a Limited Hearing Regarding Juror 50 A. Applicable Law A post-verdict hearing into alleged juror misconduct is proper only where there is “clear, strong, substantial and incontrovertible evidence . . . that a specific, non-speculative impropriety has occurred.” United States v. Stewart, 590 F.3d 93, 133 (2d Cir. 2009) (quoting Ianniello, 866 F.2d at 543). This standard can only be met by “concrete allegations of inappropriate conduct that constitute competent and relevant evidence,” though such allegations “need not be irrefutable because if the allegations were conclusive, there would be no need for a hearing.” United States v. Baker, 899 F.3d 123, 130 (2d Cir. 2018) (quoting Ianniello, 866 F.2d at 543). In the rare instances where an inquiry into potential juror misconduct is warranted, the scope of the hearing must be narrowly tailored. The Second Circuit has emphasized that the inquiry “should be limited to only what is absolutely necessary to determine the facts with precision.” Ianniello, 866 F.2d at 544. “A hearing is not held to afford a convicted defendant the opportunity to ‘conduct a fishing expedition.’” United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2d Cir. 1983) (quoting United States v. Moten, 582 F.2d 654, 667 (2d Cir. 1978)). Instead, 30 DOJ-OGR-00009151