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Case 1:20-cr-00330-PAE Document620 _ Filed 02/25/22 Page4of21 sexually abused as a child” as a basis for a broader hearing beyond inquiry into Juror 50. Maxwell Br. at 21, 49. II. Motion for a new trial on the current record Federal Rule of Criminal Procedure 33 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.” Fed. R. Crim. P. 33(a). The parties agree that a defendant’s Rule 33 motion premised on a juror’s alleged nondisclosure during voir dire is governed by McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). Maxwell Br. at 22-28; Gov. Br. at 11. In McDonough, the Supreme Court held that to obtain a new trial on the basis of juror nondisclosure during voir dire, “‘a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough, 464 U.S. at 556; see also United States v. McCoy, 995 F.3d 32, 51 (2d Cir. 2021); United States v. Shaoul, 41 F.3d 811, 815-16 (2d Cir. 1994); United States v. Langford, 990 F.2d 65, 68 (2d Cir. 1993).3 The McDonough inquiry is restricted by Federal Rule of Evidence 606, which states: During an inquiry into the validity of a verdict or indictment, 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). 3 The parties dispute certain contours of the McDonough test, including whether it requires a deliberately false answer. But at a minimum, the parties agree that the deliberateness of a juror’s incorrect answer is relevant to this inquiry. Maxwell Reply at 13-14. Because, as explained below, the Court does not now resolve at this juncture whether Juror 50’s answers on the questionnaire and voir dire merit a new trial, it need not and does not resolve those disputes pre-hearing. DOJ-OGR-00009545