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Case 1:20-cr-00330-PAE Document 643 Filed 03/11/22 Page 12 of 49

ARGUMENT

I. The Defendant’s Motion for a New Trial Should Be Denied on the Current Record

A. Applicable Law

Federal Rule of Criminal Procedure 33(a) 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.” “The defendant bears the burden of proving that he is entitled to a new trial under Rule 33, and before ordering a new trial pursuant to Rule 33, a district court must find that there is ‘a real concern that an innocent person may have been convicted.’” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001)). “It is well settled that motions for new trials are not favored and should be granted only with great caution.” United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958). “[Rule 33] motions are granted only in ‘extraordinary circumstances,’ and are committed to the trial court’s discretion.” McCourty, 562 F.3d at 475 (citing United States v. Torres, 128 F.3d 38, 48 (2d Cir. 1997)) (alterations in

Similarly, Juror 50 told The Daily Mail that the jury “did our due diligence” before reaching a verdict, and that the defendant’s decision not to testify “was simply set to one side and not discussed during deliberations.” (Gov’t Ex. B at 5). Juror 50 also indicated that he “[a]bsolutely” felt “sympathy” for the defendant, and that the jury took their job “very seriously because we took it as, this could be our sister, our sister could be on trial here,” and therefore “[w]e really have to comb through the evidence and make sure we have enough proof to say that she’s either guilty or not.” (Id. at 5). When describing deliberations, Juror 50 indicated that the jury began its deliberations “by reading the instructions page by page” and then “worked methodically through each count starting with count 2,” which was the only charge on which the jury did not convict. (Id. at 8-9). Juror 50 further explained how the jury “wrote out lists of evidence on a white board and attached post-it notes as they built the case for each as they saw it and deliberated towards consensus.” (Id. at 9). He also “said he never felt pressure from either the judge or the rest of the jurors to reach a verdict,” and that “[t]he prosecution proved their case beyond a reasonable doubt.” (Id. at 9, 12).

To be clear, the Government does not believe that the foregoing statements are admissible in this proceeding; they are described here in response to the defendant’s selective presentation of Juror 50’s description of deliberations.

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