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Case 1:20-cr-00330-PAE Document 615 Filed 02/24/22 Page 14 of 49

Cir. 2006); see also Part II.B.2.a, infra. The McDonough test is “an exacting hurdle” because “motions to set aside a jury verdict are disfavored.” United States v. Ventura, No. 09 Cr. 1015 (JGK), 2014 WL 259655, at *3 (S.D.N.Y. Jan. 21, 2014). Indeed, the Second Circuit “has only on rare occasions overturned a verdict or remanded for an evidentiary hearing” based on the failure of a juror to disclose information during jury selection. United States v. Teman, 465 F. Supp. 3d 277, 330 (S.D.N.Y. 2020); see also United States v. Sattar, 395 F. Supp. 2d 66, 72 (S.D.N.Y. 2005) (describing the “difficulty” of meeting both prongs of the test).6

During any inquiry into the validity of a verdict, “a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.” Fed. R. Evid. 606(b)(1). Thus, with limited exceptions not relevant here,7 statements or testimony from jurors about what happened or was said during deliberations may not be offered in support of a motion for a new trial based on alleged juror lies during voir dire.

6 The Court should reject the defendant’s invitation to apply New Jersey state law instead of the McDonough test. (Def. Mem. at 46-48). In New Jersey state court, a defendant may seek a new trial “where a juror’s inaccurate answer to a question propounded in the jury voir dire precluded a litigant from exercising a peremptory challenge.” State v. Scher, 278 N.J. Super. 249, 263 (App. Div. 1994). The Supreme Court rejected that standard in McDonough, as a New Jersey decision cited in the defendant’s brief acknowledges. Id. at 265 (“Our rule differs from its federal counterpart.”); (Def. Mem. at 46-47 (citing Scher, 278 N.J. Super. at 263)).
7 The only exceptions to this are inquiries as to whether “(A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.” Fed. R. Evid. 606(b)(2). “A juror’s personal experience . . . does not constitute ‘extraneous prejudicial information.’” Marquez v. City of Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005) (quoting 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 606.03(1)(b) (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2004)); see also U.S. ex rel. Owen v. McMann, 435 F.2d 813, 818 n.5 (2d Cir. 1970) (distinguishing between “any matters not of record” and “specific extra-record facts relating to the defendant”—the latter of which are not permissible influences on jury deliberations if prejudicial).

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