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
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
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 ...