DOJ-OGR-00009838.jpg

Case 1:20-cr-00330-PAE Document 643 Filed 03/11/22 Page 40 of 49

from his or her discussion of deliberations. But even if it were properly considered, this one-sentence, hearsay report of an anonymous speaker is not a sufficient basis for dragging the entire jury in for questioning at a hearing in an effort to root out the identity of this particular juror. As noted, a hearing is warranted only where there is “clear, strong, substantial and incontrovertible evidence that a specific, non-speculative impropriety has occurred.” Stewart, 590 F.3d at 133-34 (quotation omitted). “Gossip and anonymous tips do not satisfy this standard.” United States v. Stewart, 317 F. Supp. 2d 432, 443 (S.D.N.Y. 2004), aff’d, 433 F.3d 273, 306 (2d Cir. 2006). The Second Circuit and courts in this district have thus repeatedly found that a hearing is not necessary on similar facts.

For example, in United States v. Guzman Loera, a magazine article published shortly after the verdict stated that an unnamed juror alleged that jurors followed media coverage of the trial in violation of the court’s instructions, and that they heard prejudicial information not admitted during the trial, including that the defendant had drugged and raped underaged girls. No. 19-2239, 2022 WL 211199, at *12 (2d Cir. Jan. 25, 2022). During trial, the district court had repeatedly instructed the jury to avoid media coverage and on two occasions had canvassed the jury and spoke with jurors individually about particular articles. Id. One juror acknowledged seeing the relevant headline before turning away and another acknowledged seeing part of a headline before closing the application. Id. & n.15. The anonymous juror’s statements in the magazine article, however, suggested that the extent of juror exposure to this prejudicial media information was far more extensive, and that some jurors had discussed lying to the judge when he inquired about their exposure to that coverage. See Brief for Appellant, 2020 WL 5757930, at *157-*61 (2d Cir. Sept. 4, 2020) (quoting article). Nevertheless, the district court concluded that the defendant had failed to meet his burden to establish that an evidentiary hearing was warranted, and the Second Circuit

38

DOJ-OGR-00009838