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Case 1:20-cr-00330-PAE Document 643 _ Filed 03/11/22 Page 21 of 49 one can delete the Instagram app from one’s phone without deleting the account at all.!*_ And the defendant’s screenshots show that Juror 50 was not hiding anything: His Instagram use did appear, as he stated, to consist of “[p]ersonal stuff, like selfies.” (Nov. 16, 2021 Tr. at 133; see Def. Mem. at 20). There is no basis for concluding that Juror 50 deliberately lied during voir dire about his social media activity. In sum, the defendant’s argument that the Court should grant her motion based purely on unsworn public statements by Juror 50 is unpersuasive. That said, given the apparent inconsistency between Juror 50’s public statements that he was a victim of sexual abuse and his answer to Question 48 on the questionnaire, the Government believes that a limited evidentiary hearing on that subject is warranted to determine whether he answered Question 48 falsely and, if so, whether that answer was deliberate or inadvertent. The Government addresses the proper scope of that hearing in Part II, infra. 2. The Defendant Has Failed to Satisfy the Second Prong of McDonough a. The Second Prong of McDonough Requires the Court to Determine Whether It Would Have Granted a Hypothetical Challenge The defendant’s brief states: “The second question is whether truthful responses from Juror No. 50 would have provided a valid basis for a challenge for cause.” (Def. Mem. at 29 (citing Stewart, 433 F.3d at 303)). This omits an important aspect of the relevant standard, which provides that in order to make that decision, “the district court must ‘determine if it would have granted the hypothetical challenge.’” Stewart, 433 F.3d at 304 (quoting United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2002)). Critically, that determination is reviewed for abuse of discretion, and ““‘[t]here 2 See, e.g., https://www.guidingtech.com/what-happens-when-you-uninstall-instagram-from- phone/. 19 DOJ-OGR-00009819