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Case 1:20-cr-00330-PAE Document 653 Filed 04/01/22 Page 9 of 40

available information, the Court can and should order a new trial without any evidentiary hearing.” Dkt. No. 570.¹

On January 19, 2022, the Defendant filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, on the basis of Juror 50’s statements. Dkt. Nos. 613, 642. In an Opinion & Order dated February 25, 2022, the Court denied the Defendant’s motion for a new trial on the current record and determined that a hearing was necessary to resolve the motion. The Court ordered an evidentiary hearing limited to instances supported by clear, strong, and incontrovertible evidence that a specific, nonspeculative impropriety had occurred—namely, a false statement during jury selection. The hearing was also limited by Federal Rule of Evidence 606, which bars the Court from receiving evidence of a juror’s statements regarding what occurred during jury deliberations. Fed. R. Evid. 606(b)(1). Accordingly, the evidentiary hearing was limited to “whether Juror 50 provided false answers on the questionnaire, the explanation for those answers, and how Juror 50 would have responded to follow-up questions if accurate answers had been provided” during the jury selection process. Feb. 25, 2022 Op. & Order, at 7.

D. Evidentiary Hearing

The hearing took place on March 8, 2022. Juror 50 appeared with retained counsel and testified pursuant to a grant of immunity. Hearing Tr. at 3–5. Juror 50 confirmed he understood that if he provided false answers he could be prosecuted for perjury. Id. at 5. The Court conducted the questioning with input from counsel; both parties submitted proposed questions in advance for the Court’s consideration. Dkt. Nos. 635, 636. The Court’s inquiry went beyond the

¹ As noted in the Court’s prior Opinion, 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, inquiring whether he needed an attorney, and asking if he could receive a copy of his completed questionnaire. February 25, 2022 Op. & Order, at 3 n.2.

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