Maxwell 2.25.22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America, - v￾Ghislaine Maxwell, Defendant. ALISON J. NATHAN, District Judge: USDC SONY DOCUMENT EL£CTRONICA1.LY FILED DOC#: __ --=--,....,..,,,,..,,.-- Di\TE t'lLED: 2/24/22 20-CR-330 (AJN) OPINION & ORDER Before the Comi is the Defendant's motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, which the Government opposes. See Maxwell Br., Jan. 19, 2022; Gov. Br., Feb. 2, 2022. The Defendant seeks a new trial on the basis that Juror 50 "falsely answered a material question during voir dire and ... that, had he answered tmthfully, he would have been subject to a challenge for cause." Maxwell Br. at 48. The Defendant contends that the cmTent paper record sufficiently suppo1is her motion and should be granted without a hearing. Id. In the alternative the Defendant requests an evidentiaiy heai·ing to inquire into Juror 50's alleged nondisclosure. She also argues a broader heai·ing is required based on a news aiiicle that suggests a second juror was allegedly a victim of sexual abuse. Id. at 49. The Government urges this Comi to deny the Defendant's motion on the cunent record, but it consents to a limited hearing on the issue of whether Juror 50 provided a materially false answer to Question 48 of the questionnaire. Gov. Br. at 31- 32. The Defendant's motion for a new trial based on the cunent record is DENIED. Defendant's motion on the cunent record relies extensively on statements made by Juror 50 regarding what occmTed during jmy deliberations that the Comi is prohibited from considering under Rule 606. With regard to Juror 50's statements that do not pe1iain to jmy deliberations, in 1 Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 1 of 21 2 order to resolve the motion at this stage, the Court would have to accept these unsworn statements made to media outlets as true and reach factual determinations that are not available on the current record. Accordingly, a hearing is necessary to resolve the Defendant’s motion. The Court concludes, and the Government concedes, that the demanding standard for holding an evidentiary hearing is met as to Juror 50’s answer to Question 48 of the questionnaire. The Court further concludes that Juror 50’s response to Question 25 is relevant to the inquiry. Following trial, Juror 50 made several direct, unambiguous statements to multiple media outlets about his own experience that do not pertain to jury deliberations and that cast doubt on the accuracy of his responses to Questions 25 and 48. Such statements are “clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety”—namely a false statement during jury selection—has occurred. To be clear, the potential impropriety is not that someone with a history of sexual abuse may have served on the jury. Rather, it is the potential failure to respond truthfully to questions during the jury selection process that asked for that material information so that any potential bias could be explored. Conversely, the demanding standard for ordering an evidentiary hearing is not met as to Juror 50’s use of social media nor the conduct of any other juror. The Court therefore ORDERS a hearing take place at which the Court will question Juror 50 under oath. The Defendant’s request for a broader hearing and pre￾hearing discovery is DENIED. I. Background On December 29, 2021, the jury returned a verdict in this case, finding the Defendant guilty of five counts. A week after the jury announced its verdict, on January 5, 2022, the Government informed the Court that a juror had given at least three post-verdict interviews to Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 2 of 21 3 press outlets about his jury service and requested a hearing be held on the matter. Dkt. No. 568. The letter noted that in the interviews, which were both in print and on video, the juror “described being a victim of sexual abuse” and asserted that he “flew through” the juror questionnaire and did not recall being asked whether he had been a victim of sexual abuse. Id. at 1. The Government indicated in a redacted footnote that it believed the juror to be Juror 50, and a review of his questionnaire showed that he had provided a negative response to a question that asked whether a prospective juror had been a victim of sexual abuse. Id. at 2 n.2.1 Finally, the Government requested that the Court offer court-appointed counsel to the juror in the event a hearing was ordered. A letter from the Defendant followed shortly thereafter also informing the Court about the juror’s interviews. Dkt. No. 569. The Defendant filed a second letter that same day opposing the Government’s request “because based on undisputed, publicly available information, the Court can and should order a new trial without any evidentiary hearing.” Dkt. No. 570. 2 The Defendant filed a motion for a new trial on January 19, 2022. The Government opposed the motion on February 2, 2022, and the Defendant filed a reply in support on February 9, 2022. In addition to Juror 50’s post-trial interviews, the Defendant’s motion relies on a New York Times article reporting that “a second juror described in an interview . . . having been 1 The Government proposed redacting the footnote because the juror questionnaire was not a public document at that time. Because (for the reasons explained below) the Court now unseals the questionnaire, that redaction is no longer necessary. 2 For completeness of the record, the Court notes the following occurred also on January 5, 2022: The Jury Department of the Southern District of New York received a call from Juror 50 asking for guidance because of statements he had given to certain media outlets that were being widely reported on in the press and inquiring whether he needed an attorney. At the Court’s direction, the District Executive returned Juror 50’s call and informed him that the Court was unable to provide any guidance or response to his question. Juror 50 then asked the District Executive if he could access his questionnaire. The District Executive, again at the Court’s direction, informed Juror 50 that the questionnaire was not a public document and could not be provided to him. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 3 of 21 4 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. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 4 of 21 5 The Defendant urges this Court to resolve the motion on the papers, without the need for a hearing. Maxwell Br. at 28. But resolving the motion now would require the Court to accept as true Juror 50’s unsworn statements made to media outlets. Moreover, in arguing for a new trial based on the current record, the Defendant relies extensively on statements prohibited from consideration by Rule 606. E.g., Maxwell Br. at 12–14 (describing Juror 50’s statements in deliberation and other jurors’ reactions). The Defendant also urges the Court to reach factual conclusions that are unavailable on the current record; for example, that Juror 50 deliberately lied in failing to disclose that he was the victim of sexual abuse. See Maxwell Br. at 39–43. Finally, the Defendant cites no authority—nor is the Court aware of any—in which a court granted a new trial under the McDonough standard without first conducting an evidentiary hearing. As the Second Circuit has instructed, “if any significant doubt as to a juror’s impartiality remains in the wake of objective evidence of false voir dire responses, an evidentiary hearing generally should be held.” United States v. Stewart, 433 F.3d 273, 306 (2d Cir. 2006) (citing United States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992)). The Court therefore denies the Defendant’s motion to grant a new trial on the current record. III. Evidentiary hearing For the reasons outlined below, the Court determines that a hearing must be held regarding Juror 50’s alleged nondisclosure during the jury selection process. A. Threshold for an evidentiary hearing Because of the importance of finality of judgments, the threshold for conducting a post￾verdict inquiry is high. A post-verdict inquiry into juror misconduct is conducted only “when there is clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.” United States v. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 5 of 21 6 Baker, 899 F.3d 123, 130 (2d Cir. 2018) (cleaned up) (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983)). Mere “[g]ossip and anonymous tips do not satisfy this standard.” United States v. Stewart, 317 F. Supp. 2d 432, 443 (S.D.N.Y. 2004). Rather, “[a]llegations of impropriety must be ‘concrete allegations of inappropriate conduct that constitute competent and relevant evidence.’” Baker, 899 F.3d at 130 (quoting United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989)). The Defendant argues that this is the wrong standard. Maxwell Reply, Feb. 9, 2022, at 8 n.4. But the Defendant does not identify an alternative standard. And the Second Circuit has applied precisely this standard to determine whether a district court should hold a McDonough hearing on the basis of a juror’s nondisclosure during voir dire. Stewart, 433 F.3d at 302–03. The Court is bound to apply this demanding standard. This high standard for an evidentiary hearing intentionally raises an “exacting hurdle” for defendants because “motions to set aside a jury verdict are disfavored.” United States v. Ventura, No. 09-CR-1015 (JGK), 2014 WL 259655, at *3 (S.D.N.Y. Jan. 21, 2014). As the Second Circuit has repeatedly warned, “post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting juryroom deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts.” Ianniello, 866 F.2d at 543; see also Tanner v. United States, 483 U.S. 107, 119–20 (1987) (citing McDonald v. Pless, 238 U.S. 264, 267–68 (1915)). And an evidentiary hearing “is not held to afford a convicted defendant the opportunity ‘to conduct a fishing expedition.’” Stewart, 433 F.3d at 306 (quoting Moon, 718 F.2d at 1234). The Defendant argues that the considerations in Tanner and Ianniello are inapplicable to her motion because those cases “involved alleged conduct during trial and, crucially, during Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 6 of 21 7 deliberations.” Maxwell Reply Br. at 8. This argument is wrong, as “the ultimate purpose of the [requested] post-trial evidentiary hearing is to set aside a jury verdict.” Ventura, 2014 WL 259655, at *3. And “there is no discernible reason to apply a different general standard to new trial motions based on juror misconduct than to those premised on any other reason.” United States v. Guzman Loera, No. 09-CR-0466 (BMC), 2019 WL 2869081, at *5 n.5 (E.D.N.Y. July 3, 2019), aff’d, 24 F.4th 144 (2d Cir. 2022). “[E]ven though there are additional considerations . . . when ruling on an evidentiary hearing and new trial motion premised upon allegations of juror misconduct, these are the overarching legal standards applicable to all Rule 33 motions, including when juror misconduct is at issue.” Id. If a hearing is held, “its scope should be limited to only what is absolutely necessary to determine the facts with precision.” Ianniello, 866 F.2d at 544. “Therefore, in the course of a post-verdict inquiry . . . , when and if it becomes apparent that the above-described reasonable grounds to suspect prejudicial jury impropriety do not exist, the inquiry should end.” Moon, 718 F.2d at 1234. The Court has discretion to structure the hearing and to determine what testimony is needed. Ianniello, 866 F.2d at 544. B. The scope of the hearing The Court will conduct an evidentiary hearing on The Government acknowledges that Juror 50’s answer to Question 48 satisfies the demanding standard for an evidentiary hearing under McDonough. Gov. Br. at 33. The Court agrees. Question 48 asked jurors: Have you or a friend or family member ever been the victim of sexual harassment, sexual abuse, or sexual assault? (This includes actual or attempted Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 7 of 21 8 sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family member.) Dkt. No. 462 at 24. In response to that question, Juror 50 checked the box for “No,” not the box for either “Yes (self)” or “Yes (friend or family member).” But in several public statements made to media outlets after the trial, including interviews in The Independent and The Daily Mail dated January 5, 2022, Juror 50 stated that he was sexually abused as a minor. The statements are direct, unambiguous, and made by Juror 50 himself to multiple media outlets. Moreover, the statements themselves describe Juror 50’s own experience. 4 They constitute “clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred,” and so warrant an evidentiary hearing. Baker, 99 F.3d at 130. Although the Court does not decide whether the threshold to hold a hearing based on Question 25 alone has been met, because the Court will hold a hearing on Juror 50’s answer to Question 48 and because Question 48 and 25 are sufficiently related, the Court will inquire into Juror 50’s answer to Question 25. Question 25 asked jurors: Have you, or any of your relatives or close friends, ever been a victim of a crime? Dkt. No. 462 at 13. Again, Juror 50 checked the box for “No,” and not the box for either “Yes (self)” or “Yes (friend or family member).” But Juror 50’s post-trial statements, if true, may describe criminal conduct of which he was the victim. Therefore, Juror 50’s answer to Question 25 is sufficiently related to the answer to Question 48 and so the Court will also inquire as to Question 25 at an evidentiary hearing. See Baker, 99 F.3d at 130. 4 The articles additionally state that Juror 50 shared this experience with the jury during deliberations. The Court is prohibited by Rule 606 from considering that Juror 50 also told this information to the jury. That Juror 50 revealed that he also disclosed this information to the jury does not prohibit the Court from considering Juror 50’s independent statements made to a reporter about his own experience. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 8 of 21 9 The potential impropriety that warrants a hearing is not that someone with a history of sexual abuse may have served on the jury. Rather, it is Juror 50’s potential failure to respond truthfully to questions during the jury selection process that asked for such material information so that any potential bias could be explored. Accordingly, the Court will hold a hearing limited in scope to Juror 50’s answers to Questions 25 and 48 of the questionnaire. C. The Defendant has not justified an inquiry into Juror 50’s social media The parties devote significant portions of the briefs to the question of whether Juror 50 answered falsely the Court’s questions about social media usage during voir dire. To the extent that the Defendant seeks a hearing to probe Juror 50’s answers to voir dire about his social media usage, her arguments are based on speculation, and she has failed to make the high showing required. See Baker, 899 F.3d at 130. At voir dire, when asked if he “use[s] social media,” Juror 50 stated, “I do, but I actually just deleted them because I just got out of a relationship and I didn’t want to see anything regarding them. So I am fully off of it right now.” Nov. 16, 2021 Tr. at 133. The Court then asked, “What did you use, Facebook, Twitter?” to which Juror 50 replied “Facebook and Instagram,” clarifying that the accounts contained “[p]ersonal stuff, like selfies.” Id. The screenshots proffered by the Defendant do not demonstrate that any of these answers implicate McDonough. First, Juror 50 did not deny having a Twitter account. Second, Juror 50’s account had only 1 follower and followed only 39 people, which corroborates that his Twitter use was, at most, relatively minimal. See Maxwell Br. at 17. Third, the fact that Juror 50’s Twitter account was opened in April 2021 and that he used it again in January 2022, after the completion of the trial, is consistent with Juror 50’s answer that he deleted his social media accounts, or just the social media applications, shortly before voir dire. The same is true of Juror Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 9 of 21 10 50’s Instagram account, on which he also posted in January 2022, after the completion of the trial. Id. at 20. And fourth, the screenshots proffered match Juror 50’s description of his social media accounts as containing only “[p]ersonal stuff, like selfies.” Id. The threshold for a hearing has not been met on this issue and the Court will not permit “a fishing expedition” into Juror 50’s social media usage. Moon, 718 F.2d at 1234 (quoting United States v. Moten, 582 F.2d 654, 667 (2d Cir. 1978)). D. The Defendant has not justified an inquiry into other jurors The Defendant seeks to examine not only Juror 50 at an evidentiary hearing but also the other eleven members of the jury in order to identify a second juror who, according to an article published by the New York Times, also was sexually abused as a minor. Maxwell Br. at 21, 49– 50. The Defendant further argues that even if the article alone is insufficient to order a hearing as to the juror mentioned in the article, Juror 50’s post-trial statements corroborate that another juror discussed sexual abuse during deliberations. Maxwell Reply at 24. As explained below, the evidence of this allegation is inadequate to meet the exacting standard for a hearing and the Court denies the Defendant’s request to examine any jurors on this basis.5 5 On December 31, 2021, the Court informed the parties by sealed order that a juror had contacted court staff about being approached by a reporter despite the fact that the juror had not identified themselves publicly and wished to remain anonymous. Because the contact by the member of the media had been uninvited by the juror, chambers staff notified all jurors via email on December 30, 2021, about the development. Subsequently, on January 5, 2022, a juror replied to the December 30 email sent by court staff. In that reply email, the juror wrote regarding news reports about the issue with Juror 50. The Court informed the parties of the juror communications by sealed order on January 6, 2022. The Defendant requested the communications, which the Court denied without prejudice. See Sealed Memo Endorsement, Jan. 13, 2022. The Defendant now renews her request on the theory that the communications could shed light on the identity of the second juror referred to by the New York Times. See Maxwell Br. at 21 n.10; Maxwell Reply at 23 n.12. Such a request is nothing but unfounded speculation. A juror’s communication expressing fear about the media reports and the parties’ responses to Juror 50’s interviews are not relevant to the current inquiry. Nonetheless, in order to ensure a complete record, the Court will transmit under seal the concerned juror’s communications to the parties with the name and contact information of the concerned juror redacted in order to protect the juror’s privacy and prevent juror harassment. See Ianniello, 866 F.2d at 543. The Court also includes a subsequent communication with the same juror expressing additional concerns so that the parties have a complete record of non-logistical juror communications. The Court will file the unredacted communications under seal for preservation for the appellate record. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 10 of 21 11 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 Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 11 of 21 12 insufficient basis for an evidentiary hearing, especially one that, according to the Defendant, would require the Court to “haul [11] jurors in after they have reached a verdict” to probe for who, if anyone, may have been mentioned in the article. Guzman Loera, 24 F.4th at 161 (quoting Moon, 718 F.2d at 1234). Second, Federal Rule of Evidence 606 bars the Court from considering Juror 50’s statements as evidence of another juror’s statements purportedly made during deliberations. As previously quoted, the rule 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). Rule 606(b) is subject to three enumerated exceptions that permit a juror to testify about whether (A) “extraneous prejudicial information was improperly brought to the jury’s attention”; (B) “an outside influence was improperly brought to bear on any juror”; or (C) “a mistake was made in entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2). In addition to these exceptions enumerated in the rule, the Supreme Court has held that Rule 606 “give[s] way” where “a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 863 (2017). Absent one of these circumstances, evidence within the ambit of Rule 606 may not be considered. Here, the Defendant relies on Juror 50’s statements of what another juror allegedly stated during deliberations. That proffer is barred by Rule 606. In response, the Defendant argues that Juror 50’s statements about the second juror fall outside the scope of Rule 606 because she “does not seek to impeach the verdict based on the Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 12 of 21 13 content of deliberations” but instead to demonstrate that the second juror made a false statement during voir dire, like Juror 50 allegedly did. Maxwell Br. at 50. But this reading of Rule 606 has been squarely rejected by the Supreme Court, which held that the “plain meaning” of this language is that “Rule 606(b) applies to juror testimony during a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire.” Warger v. Shauers, 574 U.S. 40, 44 (2014). The Defendant’s one-sentence attempt to dismiss Warger because it involved a civil rather than a criminal case is unavailing. Maxwell Reply at 23 n.11. It is the same rule of evidence in issue, and the principles enunciated by the Supreme Court apply here with equal force. The Defendant may also be suggesting in this argument that Rule 606 does not bar Juror 50’s statements because they concern “extraneous prejudicial information,” which is an enumerated exception to the rule. See Fed. R. Evid. 606(b)(2)(A). To the extent that argument is raised, it is meritless. Information is “extraneous” when it is “external to the jury”—that is, “publicity and information related specifically to the case the jurors are meant to decide,” rather than “the general body of experiences that jurors are understood to bring with them to the jury room.” Warger, 574 U.S. at 51 (cleaned up). So, for example, the Supreme Court has held that a foreperson’s undisclosed experience with a car accident is not extraneous information, even in a motor-vehicle lawsuit where that failure to disclose could have supported a for-cause strike. Id. at 42–43. The same is true here, as the second juror’s alleged undisclosed experience “did not provide either [the juror] or the rest of the jury with any specific knowledge regarding” this particular case. Id. at 51–52. Rather, as this Court instructed, jurors are expected to bring their “reason, experience, and common sense” to bear in evaluating witnesses’ credibility and the Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 13 of 21 14 Defendant’s ultimate guilt. Trial Tr. at 3066; see also U.S. ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970). Last, the Defendant argues—in a single sentence of her reply brief—that if Rule 606 does bar consideration of Juror 50’s statements about the second juror, then the rule “violates Ms. Maxwell’s constitutional rights to due process and to confrontation as applied to her.” Maxwell Reply at 23. The Court rejects this argument. The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const., amend. VI. The Defendant’s right to confrontation is not implicated here because Juror 50 is not a “witness[] against” the Defendant but was instead a factfinder in her trial. Simply put, Juror 50’s testimony at the hearing will be proffered to determine whether Juror 50 has engaged in any misconduct warranting a new trial, not to accuse the Defendant of any crime. Cf. Crawford v. Washington, 541 U.S. 36, 43 (2004) (describing the Confrontation Clause as a “right to confront one’s accusers” (emphasis added)). Even if the Confrontation Clause were implicated, Rule 606’s prohibition on juror affidavits to impeach a verdict is a reasonable limitation, subject to other exceptions not at issue here, on the evidence that a defendant may muster, a limitation with a long historical pedigree. See Pena-Rodriguez, 137 S. Ct. at 863 (tracing Rule 606 to traditional English common law); Crawford, 541 U.S. at 54 (explaining that the Confrontation Clause “is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding”). Next, the Defendant’s due-process claim is squarely foreclosed by controlling precedent. The Supreme Court in Tanner v. United States rejected a constitutional challenge to Rule 606, explaining that a criminal defendant’s right to an impartial jury is “protected by several aspects of the trial process,” including questions asked in voir dire; observations in court made by the Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 14 of 21 15 judge, court personnel, and counsel; observations by other jurors, who “may report inappropriate juror behavior to the court before they render a verdict”; and “impeach[ment] [of] the verdict by nonjuror evidence of misconduct.” 483 U.S. at 127; see also Warger, 574 U.S. at 51 (“[A] party’s right to an impartial jury remains protected despite Rule 606(b)’s removal of one means of ensuring that jurors are unbiased.”). The Defendant cites in support the Supreme Court’s decision in Pena-Rodriguez v. Colorado, but that case is unavailing to her position. There, the Supreme Court held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” 137 S. Ct. at 869. Throughout the opinion, the Supreme Court took great care to hold that the “unique historical, constitutional, and institutional concerns” intrinsic to a juror with racial animus do not attach to other forms of juror misconduct. Id. at 868. In fact, it expressly contrasted the case of a juror with racial animus to a juror that “ha[s] a personal experience that improperly influences her consideration of the case,” as was at issue in Warger v. Shauers and as is alleged here. Id. at 869. Third, even if the Court did consider Juror 50’s statements about what another juror said during deliberations—which Rule 606 prohibits—the statements proffered by the Defendant do not meet the threshold of “clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred.” Baker, 899 F.3d at 130. According to an article in the Daily Mail, Juror 50 “revealed that he was not the only juror to share a story of sexual abuse.” That sentence summarizes an unsworn and non-specific statement, which does not identify the alleged misconduct or the juror in question with any particularity. It therefore falls Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 15 of 21 16 short of the demanding standard for ordering a post-verdict evidentiary hearing. See Bin Laden, 2005 WL 287404, at *2. Notably, this case is far from United States v. Colombo, where the Second Circuit ordered an evidentiary hearing on the basis of two sworn affidavits that identified another juror by name and described with particularity the alleged misconduct. 869 F.2d 149, 151 (2d Cir. 1989). The Court therefore rejects the Defendant’s as-applied constitutional challenge to Rule 606 and further concludes that Rule 606 bars the Court’s consideration of Juror 50’s statements about the second juror. Even if the Court considered Juror 50’s statement about another juror, the evidence would be insufficient to meet the high threshold for an inquiry. Without nonspeculative evidence of misconduct by any juror but Juror 50, the Court restricts the focus of the evidentiary hearing to Juror 50. See Ianniello, 866 F.2d at 544.6 IV. The nature of the hearing A. The Court will examine the witnesses and the parties may submit questions In concluding that an inquiry into Juror 50’s conduct is warranted, the Court is mindful that the “object of the proceeding is to permit the truth to be discovered with the least possible harm to other interests.” Moten, 582 F.2d at 666. Accordingly, the Court denies the Defendant’s request that counsel directly question the juror—a decision committed to this Court’s “sound discretion.” Id. at 667; see also Ianniello, 866 F.2d at 544 (“We leave it to the district court’s discretion to decide the extent to which the parties may participate in questioning the witnesses, and whether to hold the hearing in camera.”). The Court will conduct the questioning at the 6 The Defendant’s briefing is unclear as to whether she seeks to question the other 11 jurors only to identify the juror implicated by the news article, or if she would seek to question the other jurors in any event to determine “what Juror No. 50 said to the other jurors.” See Maxwell Br. at 49. To the extent the Defendant is requesting the ability to question jurors about what Juror 50 allegedly disclosed during deliberations, that request is denied as it is plainly foreclosed by Rule 606. See also Ianniello, 866 F.2d at 544. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 16 of 21 17 public hearing with input from counsel. The parties may submit questions consistent with this ruling, including what the Court holds in this Opinion are the limitations imposed by Rule 606 and the appropriate scope of the hearing. Once again, the scope of the inquiry is Per this Court’s prior order, the parties must submit the proposed questions under temporary seal to ensure the integrity of the inquiry. See Dkt. No. 596 at 4. Proposed questions must be submitted via email on or before March 1, 2022. The proposed questions will be unsealed following the hearing. B. The Defendant’s subpoena requests are denied The Defendant seeks two sets of subpoenas to conduct discovery in advance of the hearing. Maxwell Br. at 48–49. First, from Juror 50, the Defendant seeks any emails or other communications between Juror 50 and any alleged victim or witness; any other juror; any other person or media organization about Juror 50’s jury service; and, finally, any record of payments for any interview or information that Juror 50 gave about his jury service. Second, from Facebook, Twitter, LinkedIn, Instagram, and other social media platforms, the Defendant seeks all communications to and from Juror 50 regarding his jury service; all posts, comments, or photographs by Juror 50 regarding his jury service; and all documents reflecting when Juror 50 opened or closed his accounts. In her initial brief, the Defendant simply lists these requests without justification. In her reply, she provides only a short rebuttal to the Government’s objections and does not explain why each request is relevant or proper. The Court denies these requests as vexatious, intrusive, unjustified, and a fishing expedition. Given the focused inquiry the Court is ordering, the evidentiary hearing’s scope Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 17 of 21 18 must be “limited to only what is absolutely necessary to determine the facts with precision.” Ianniello, 866 F.2d at 544. The Defendant can only speculate that the requested communications between Juror 50 and unknown persons and entities would shed any light on Juror 50’s answers to the questionnaire and his bias before the trial at the time of voir dire. Nor has the Defendant explained why Juror 50’s receipt of financial payment for interviews after the trial, if true, would be probative of his inclination to not disclose at voir dire prior to trial. The Court will not grant the Defendant “the opportunity to ‘conduct a fishing expedition.’” Moon, 718 F.2d at 1234 (quoting Moten, 582 F.2d at 667). Moreover, the Defendant’s requested subpoenas directed at social media companies who have custody of Juror 50’s communications, comments, and posts are procedurally improper. Those requests for social media content are subject to the Stored Communications Act, 18 U.S.C. §§ 2701–11, which requires an additional factual showing for the Court to order disclosure, see 2 Wayne LaFave et al., Criminal Procedure §§ 4.8(b), 4.8(d) (4th ed. 2021); Matter of Warrant to Search a Certain E-Mail Acct. Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 206 (2d Cir. 2016), vacated and remanded on other grounds, 138 S. Ct. 1186 (2018). And only the Government, not private parties like the Defendant, may request disclosure pursuant to the Act. United States v. Nix, 251 F. Supp. 3d 555, 559 (W.D.N.Y. 2017) (“[T]he [SCA] does not permit a defendant in a criminal case to subpoena the content of a Facebook or Instagram account.”); Facebook, Inc. v. Wint, 199 A.3d 625, 629 (D.C. 2019) (collecting cases). Though the Government raised the Act in its briefing, the Defendant does not acknowledge it or purport to show she is entitled to make a request. Accordingly, the requests as to the listed social media companies are denied. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 18 of 21 19 The Court concludes that the Defendant has not made a showing that any pre-hearing discovery is appropriate, and the request to engage in an intrusive fishing expedition is denied. C. The Court will release Juror 50’s questionnaire This Court previously reserved ruling on Juror 50’s request that the Court release his jury questionnaire to counsel, but that the document otherwise remain under seal to protect his supposed privacy interest. See Dkt. No. 596 at 5 n.1. The Defendant opposes both the unsealing and releasing the questionnaire to counsel, arguing that “advance disclosure . . . will undoubt[edly] color Juror No. 50’s testimony and allow him to place himself in the best possible posture.” Maxwell Br. at 53. The Government argues that there is no legitimate interest in limiting Juror 50’s access and opposes maintaining the questionnaire under seal. Gov. Br. at 42; see also Dkt. No. 594. The Court will provide Juror 50 a copy of his completed questionnaire. Unlike the parties’ proposed questions, Juror 50’s access to his completed questionnaire—the answers to which he wrote—will not undermine the integrity of the inquiry. The Defendant’s concern that advance disclosure may somehow taint Juror 50’s testimony is unfounded. See United States v. McCoy et al., No. 14-CR-6181 (EAW), Dkt. No. 329, at 15 (W.D.N.Y. June 2, 2017) (providing the jury questionnaire to juror’s counsel in advance of the hearing). Rather, delaying disclosure until the hearing would needlessly delay the fact-finding process. Moreover, the Court concludes that the presumption of access dictates that the questionnaire must be docketed. Juror 50’s and the Defendant’s request that the questionnaire remain sealed is governed by the three-part test articulated by the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). See Dkt. No. 596 at 2 (outlining the test). First, the jury questionnaire easily qualifies as a judicial document. It is a key exhibit to Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 19 of 21 20 the Defendant’s motion for a new trial. Cf. Carbon Inv. Partners, LLC v. Bressler, No. 20-cv￾3617 (ER), 2020 WL 5441497, at *2 (S.D.N.Y. Sept. 10, 2020). Accordingly, a high presumption of access attaches. For the reasons stated in this Court’s prior order, this presumption of access is not outweighed by the possibility of media interest in the document. See Dkt. No. 596 at 3. Nor is sealing necessary to safeguard a possible hearing for the reasons stated above. Finally, any privacy interest Juror 50 may have had in his questionnaire, see Press￾Enterprise Co. v. Superior Ct. of Cal., 464 U.S. 501, 511–12 (1984), has at least been greatly diminished, if not extinguished, since his public comments. The Court further notes that prospective jurors had the opportunity to request that particular questionnaire answers remain confidential; Juror 50 did not make any such request. Accordingly, Juror 50’s privacy interest in the questionnaire is now outweighed by the presumption of access. Lugosch, 435 F.3d at 119– 20. The Defendant is accordingly ORDERED to docket Exhibit 1 to her motion for a new trial, Juror 50’s completed questionnaire. V. Conclusion For the reasons stated above, the Court will hold a hearing regarding Juror 50’s answers to Questions 25 and 48 of the questionnaire. The public proceeding will take place on March 8, 2022, at 10:00 a.m. Juror 50 is hereby ORDERED to appear in Courtroom 906 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York at that date and time to give testimony under oath in response to the Court’s questions. Counsel for the Defendant and the Government are ORDERED to submit via email proposed questions in accordance with this Opinion & Order on or before March 1, 2022. SO ORDERED. Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 20 of 21 21 Dated: February 24, 2022 New York, New York ____________________________________ ALISON J. NATHAN United States District Judge Case 1:20-cr-00330-AJN Document 620 Filed 02/25/22 Page 21 of 21