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Case 1:20-cr-00330-PAE Document 615 Filed 02/24/22 Page 35 of 49

interviewed by the Court; the parties were permitted to propose questions before and during the hearing.”), aff’d, 285 F.3d 158 (2d Cir. 2002).

That course of action is especially appropriate here for several reasons. First, the subject matter—the juror’s history of sexual abuse—presents a particularly high danger of harassment or embarrassment. Second, as noted above, the defendant’s brief is littered with information barred by Rule 606(b), suggesting a real danger she will seek to question Juror 50 about improper and inadmissible subjects. The Court should exercise its discretion to supervise the hearing by conducting the questioning itself.

2. The Scope of the Hearing Should Be Limited

The scope of the hearing should be tightly limited to “only what is absolutely necessary to determine the facts with precision.” Ianniello, 866 F.2d at 544; see also Sun Myung Moon, 718 F.2d at 1234; Gagnon, 282 F. App’x at 40.14 Here, the only issues relevant under McDonough are whether Juror 50 intentionally lied in response to Question 48, and whether Juror 50 was actually biased against the defendant. No other subjects are appropriate for inquiry.15

14 In particular, Juror 50 cannot be asked to testify about what was said by any juror (including him) in the jury room, or what his mental process was as a deliberating juror. He also cannot be asked whether he or any other juror discussed personal experiences with sexual abuse during deliberations. Fed. R. Evid. 606(b); Warger, 574 U.S. at 43-44 (“We hold 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.”).
15 For the reasons discussed above, [REDACTED]. Similarly, as discussed above, the defendant has also not met her burden with respect to whether Juror 50 answered Question 25 incorrectly, namely, whether Juror 50 considers himself to be a victim of a crime. However, in the event that Juror 50’s testimony at the hearing regarding Question 48 makes clear that Juror 50 answered Question 25 incorrectly as well, the Government would consent to the Court questioning Juror 50 regarding that question. However, that questioning should be limited in the same manner as discussed throughout with respect to Question 48.

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