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May 5, 2004.

United States of America -against- Martha Stewart and Peter Bacanovic, Defendants

The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge


Defendant Martha Stewart moves for a new trial pursuant to Fed.R.Cr.P. 33 or, alternatively, an evidentiary hearing into alleged juror misconduct. Her co-defendant, Peter Bacanovic, joins this motion.*fn1 For the following reasons, the motion is denied.


  Stewart and Bacanovic were indicted in June 2003 and charged with conspiracy, making false statements to government officials, and obstruction of an agency proceeding. Bacanovic was also charged with perjury and making and using a false document, and Stewart with securities fraud.

  Because the extraordinary publicity surrounding the case presaged difficulty in finding an unopinionated jury pool, a two-part voir dire process was used. Several hundred jurors were summoned to the courthouse to fill out a questionnaire that the parties had jointly drafted. The Government and defendants then reviewed the completed questionnaires. After challenges for cause, the remaining prospective jurors returned to the courthouse for individual questioning.

  Among many other areas of inquiry, the questionnaire sought to determine each prospective juror's prior contact with the justice system. One question asked whether the juror had ever appeared in court. Another asked whether the juror, or someone close to the juror, had ever been a victim of a crime, filed criminal charges, been sued by someone, or been accused of wrongdoing on a job. Another question asked whether the juror or a family member or close friend had ever been questioned by law enforcement, accused of, charged with, or convicted of any crime.

  Chappell Hartridge was among the prospective jurors who returned for individual questioning. In his questionnaire, Hartridge explained that he had appeared in court in a dispute with his landlord. He responded in the negative to all of the other questions described above. Hartridge was subsequently empaneled as Juror 8.

  After a five-week trial, the jury convicted Stewart of all four of the counts against her,*fn2 and convicted Bacanovic of four of the counts in which he was charged, acquitting him of one. In the days following the return of the verdict, several members of the jury, including Hartridge, spoke with the press concerning their experiences as jurors in this case.

  Defendants now move for a new trial pursuant to Fed.R.Cr.P. 33, claiming that they were deprived of their right to a fair trial because Hartridge deliberately concealed material information in his jury questionnaire.


 I. Legal Standard

  Unquestionably, it is the court's duty to ensure that every criminal defendant receives a fair trial. An essential component of fairness is an impartial jury, and voir dire serves to protect the defendant's right to an impartial jury "by exposing possible biases, both known and unknown, on the part of potential jurors. . . . The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). However, a defendant who seeks a new trial based on allegations of juror misconduct faces a very high hurdle. As the Supreme Court explained, "full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct." Tanner v. United States. 483 U.S. 107, 120-21 (1987). Accordingly, "courts are, and should be, hesitant to haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences." United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). Such inquiries are not mandatory; rather, "a trial court is required to hold a post-trial jury hearing only when reasonable grounds for investigation exist. Reasonable grounds are present when there is clear, strong, substantial and incontrovertible evidence, that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant." Id. (citation omitted). Were it otherwise, the policy of restraint that governs postverdict inquiries into juror conduct could be circumvented at the defendant's option, no matter how ill-founded or farfetched the demand.

  McDonough governs claims that a juror's failure to respond accurately to voir dire questions jeopardized the fairness of a defendant's trial. During juror questioning in McDonough — a personal injury suit arising from a lawnmower accident — prospective jurors were asked whether they or any of their family members had ever suffered an injury that had resulted in disability or prolonged pain and suffering. After the jury returned a verdict in favor of the plaintiff, the defendant moved for a new trial, having learned that one juror, who had answered that question in the negative, had a son who had been injured by an exploding truck tire. The district court denied the motion, and the Supreme Court agreed, noting that the juror apparently believed that his son's injury did not fall within the category of injuries that the question contemplated. See McDonough, 464 U.S. at 555. Recognizing that every defendant "is entitled to a fair trial but not a perfect one, for there are no perfect trials," id. at 553 (quoting Brown v. United States, 411 U.S. 223, 231-32 (1973)), the Court set out a multi-part test to govern the analysis of such motions:
[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. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.
Id. at 556. Accordingly, under the McDonough test, a court must first find that a juror answered a question dishonestly. The Second Circuit has noted that a "good faith failure to respond, though mistaken, [does] not satisfy . . . the first prong of the test." United States v. Shaoul, 41 F.3d 811, 815 (2d Cir. 1994) (citing McDonough, 464 U.S. at 555). The court must then determine whether it would have granted a challenge for cause based on a truthful answer. See United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2002). Challenges for cause are generally based on a finding of bias. See id. (citing United States v. Torres. 128 F.3d 38, 43 (2d Cir. 1997)).

  The difficulty of this showing is evident from the fact that no verdict in the Second Circuit has been overturned on the basis of juror nondisclosure under the McDonough test. In some cases, defendants fail to satisfy the first prong of the test: showing that the juror in controversy failed to answer a question honestly. See, e.g., Shaoul, 41 F.3d at 816 (affirming the district court's denial of the defendant's Rule 33 motion where the defendant conceded the juror's good faith and the court found that the juror's distant familial relationship with an Assistant United States Attorney did not require a finding of implied bias). But even where a juror deliberately omitted or misstated facts during voir dire, a new trial will not be granted absent a finding that the juror's nondisclosure concealed some bias or partiality that would have sustained a for-cause challenge. In United States v. Langford, 990 F.2d 65 (2d Cir. 1993), for example, the defendant learned after a guilty verdict had been returned that a juror had deliberately concealed several arrests and criminal convictions. However, the district court found no evidence that the juror lied from a desire to sit on the jury, or from some prejudice against the defendant — rather, she had simply wished to avoid embarrassment and the possible public exposure of her criminal history. The Second Circuit affirmed the district court's denial of the defendant's motion. See id. at 69-70. In Greer, a juror had failed to disclose during voir dire that a close friend of the defendant's had contacted him prior to jury selection and asked him to be a ...

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