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Case 1:20-cr-00330-PAE Document 620 Filed 02/25/22 Page 14 of 21

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

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