OPINION & ORDER
Defendant Lynne Stewart moves for a new trial pursuant to Fed. R. Cr. P. 33, or in the alternative, an evidentiary hearing based on alleged juror misconduct by Juror # 82 during the voir dire examination. Defendant Stewart also requests that the Court conduct an inquiry into allegations of extraneous influence on Juror # 39 and complaints by Juror # 39 about the deliberation process. Co-defendants Ahmed Abdel Sattar and Mohammed Yousry join in these applications. For the following reasons, these applications are denied.
I.
The relevant facts relating to the defendants’ applications are as follows. On February 10, 2005, after an eight-month jury trial, defendants Stewart, Sattar, and Yousry were convicted of all charges contained in the seven-count Superseding Indictment. (Tr. 13116-19.) Specifically, the jury convicted Sattar of solicitation of crimes of violence and conspiracy to kill persons in a foreign country in violation of 18 U.S.C. §§ 373 and 956. Stewart and Yousry were convicted of providing and concealing, and conspiracy to provide and conceal, material support and resources to terrorist activity in violation of 18 U.S.C. §§ 2339A and 371. Stewart was also convicted of two counts of false statements in violation of 18 U.S.C. § 1001, and all defendants were convicted of conspiracy to defraud the United States in violation of 18 U.S.C. 371. Among the twelve jurors rendering the verdict were Jurors # 82 and #39.
A.
On June 3, 2005, nearly four months after the jury returned the verdict, defendant Stewart moved for a new trial pursuant to Fed.R.Crim.P. 33, or alternatively for an evidentiary hearing, because Juror # 82 allegedly provided material false information during the voir dire process, denying Stewart her Sixth Amendment right to an impartial jury. (Stewart Mot. 1.) Co-defendants Sattar and Yousry join in this motion. (Stewart Reply Mem. at 1 n. 2.)
As evidence of Juror # 82’s misconduct, Stewart offers the May 24, 2005 sworn declaration of Juror # 76, a prospective juror not selected for the trial in this action. (5/24/2005 Decl. of Prospective Juror #76 at ¶ 1.) Prospective Juror #76 recalls that while awaiting jury selection a year earlier on May 20, 2004, she and the other prospective jurors rearranged their chairs to talk to each other, and she overheard Juror # 82 talk “about many things, but mainly about sports.” (Id. at ¶ 3-4.) Prospective Juror #76 states that “[a]t some point in the afternoon, [Juror # 82] told us that he had been in jail for a couple of nights when he was in the military and that he did not want to go back there. He then said, in substance, that if someone is in front of a judge on charges, it is because they had done something wrong.” (Id.) Prospective Juror #76 watched the Court *70 swear. in Juror # 82 as a member of the jury, but did not inform the Court of what she had heard. (Id. at ¶ 5.) Prospective Juror # 76 first provided this information by contacting defense counsel after the trial. (Id. at 1 n. 1; Stewart Reply Mem. at 4 n. 3.)
Due to the extensive publicity surrounding this case, a two-part voir dire process was used before trial. Prior to jury selection in May 2004, approximately 500 prospective jurors, including Juror # 82, filled out a lengthy 45-page juror questionnaire. (6/02/2005 Dratel Decl. in Support of Post Trial Motion, Ex. 2 (“Juror # 82 Questionnaire”).) The Government, defendants, and the Court reviewed the completed questionnaires to strike jurors for cause and identify any issues that needed to be explored through questioning of individual jurors. The remaining prospective jurors were individually interviewed by the Court in open court. All the prospective jurors were identified only by numbers and the anonymity of the jurors was preserved throughout the trial and continues to be preserved.
On his questionnaire, Juror #82 had provided sworn answers that he would accept the presumption of innocence (Question # 108), require the prosecution to bear the burden of proof beyond a reasonable doubt (Question # 109), base his verdict solely on the evidence or lack of evidence presented in court (Question # 110), and was otherwise able to serve as a fair and impartial juror (Questions 113-115). (Juror #82 Questionnaire at 40-41.) In response to Question 45(f), Juror # 82 indicated that he had not been in prison, although he disclosed that his brother had been in prison for a drug conviction. (Id. at 18.) Juror # 82 acknowledged in response to Question 47 that his brother “committed a crime and he did the time,” and indicated there was nothing about his brother’s conviction and imprisonment that would prevent him from being a fair and impartial juror. (Id.) In response to Question 27, which specifically inquired into any military disciplinary actions, Juror # 82 disclosed that he had been subject to an Article 15 disciplinary action. (Id. at 13.) During the course of follow up voir dire questioning by the Court, Juror # 82 disclosed that he received an Article 15 and lost a stripe for disobeying an order to march, and that his brother had been imprisoned for three years; Juror # 82 testified that nothing about this would prevent him from being a fair and impartial juror in this case. (Tr. 397-99.) Defendants allege that these responses were misrepresentations that concealed bias against the defendants.
B.
On June 3, 2005, counsel for Stewart wrote the Court requesting that it “followup” and inquire into allegations made by Juror # 39. (6/03/05 Shellow-Lavine Ltr. at 1.) The letter indicated that co-defendants Sattar and Yousry joined in the request. Id.
In March 2005, following the verdict, one attorney for Stewart was contacted by “three persons (not affiliated with the lawyers in this case) alerting [him] that a juror wanted to speak to [him].” (6/02/2005 Dratel Decl. at ¶ 2.) One of these persons was Steven J. Masef, Esq., who was acting as informal counsel for Juror # 39. (Id.) Starting on March 3, 2005, counsel for Stewart held several phone calls with Mr. Masef, culminating in an April 26, 2005 meeting among three defense counsel, an additional lawyer they had brought with them, Mr. Masef, and Juror # 39. (Id. at ¶ 3-5.)
Through the phone calls with Mr. Masef, Stewart’s defense counsel was allegedly told that Juror # 39 “had been one of the *71 two ‘holdouts’ on the jury” and that “a person not on the jury had said to her at some point, in sum and substance, ‘So you’re the holdout? If you let the terrorist go, you’re a terrorist yourself.’” (Id. at ¶ 4.) At one point, Mr. Masef indicated to Stewart’s counsel that this person “was a court officer or court personnel.” (Id.) However, at the April 26 meeting, Juror # 39 allegedly told defense counsel that “on the last day of deliberations, as she was getting out of the van in which she had been transported to the courthouse, someone from outside — by which she meant someone not on the jury — identified her and said ‘that’s the holdout.’ ” (6/03/05 Shellow-Lavine Ltr. at 2.) Juror # 39 also reported that another juror had told her earlier in deliberation “that it would be her fault if anyone died as a result of this trial.” (Id.) Juror # 39 added that “maybe she wasn’t thinking clearly when she voted to convict the defendants.” (Id.)
Earlier, on February 23, 2005, Juror # 39 had contacted the Jury Administrator and said she wanted to write a letter to the Court about something that happened in the jury room. The Court brought that contact to the attention of the parties. On March 25, 2005, after phone conversations between Mr. Masef and defense counsel, of which the Court was not informed, Juror # 39 sent a letter to the Court, which was filed under seal attached to an Order from this Court dated April 1, 2005. The typewritten letter was plainly written with the assistance of somebody other than Juror # 39. On its face, the March 25 letter describes the course of internal juror deliberations, and does not refer to any of the alleged outside comments discussed above. The letter states that Juror # 39’s verdict “came about only as a result of the fear and intimidation [she] was made to feel for [her] life during the course of deliberations.” (3/25/05 Juror # 39 Ltr. at 1.) The letter complains of “a relentless verbal assult [sic] on my person and my position until I had no other choice but to relent because of fear I felt.” (Id.)
The alleged “hold out” comment from someone outside of the jury would have occurred during a period of heightened jury security following a January 25, 2005 incident in one of the vans transporting the jurors home. (Tr. 12624.) After the incident, the Court conducted in the presence of representative counsel of the parties an individual voir dire of each the jurors in the van (which did not include Juror # 39) to ensure that nothing about the incident would affect the juror’s decision. (Tr. 12624-94.) In addition, the Court assigned a marshal to accompany the jurors in the vans to ensure that no inappropriate conduct occurred. (Tr. 12888.)
On February 9, 2005, the day before the verdict, Juror # 39 indicated through a note from the jury foreman that she would like to speak to the Court. (Court Ex. 148.) The Court met with Juror # 39 on February 9, 2005, in the presence of representative counsel for the defense and the Government. (Tr. 13054-56.) During this meeting, Juror #39 only indicated that she had a question about the jury charge. Id. Juror # 39 was instructed to submit her question about the jury charge through a note from the foreman, which she did, asking only “is knowingly or intending conspiracy to kidnap [and] murder are [sic] charges in count five?” (Id. at 13055; Court Ex. 158.) At no time did Juror # 39 raise with the Court any allegations of outside influence or complaints about the course of jury deliberation. On February 10, 2005, Juror # 39 signed, along with all the other jurors, the verdict sheet with her number before it was presented in open court. After the foreman announced the verdict, Jury # 39 reaffirmed in response to the jury poll, along with *72 all the other jurors, the verdict in open court. (Tr. 13121-22.)
II.
Defendants’ first application is for a new trial pursuant to Fed. R. Cr. P. 33, or in the alternative, an evidentiary hearing with respect to the alleged misconduct of Juror # 82. Defendants argue that Juror # 82 failed to disclose (1) that he had been in a jail for a couple of nights, and (2) that he believed that “if someone is in front of a judge on charges, it is because they had done something wrong.”
A.
1.
Rule 33 of the Federal Rules of Criminal Procedure states that the trial court may grant a defendant’s motion for a new trial “if the interest of justice so requires.” Fed.R.Crim.P. 33(a). Rule 33 gives the court “broad discretion ... to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.”
United States v. Ferguson,
In evaluating motions for a new trial based on a juror’s alleged failure to respond accurately to
voir dire
questions, the Supreme Court has set out the two-step
McDonough
test.
McDonough Power Equipment, Inc. v. Greenwood,
2.
The standard for conducting a post-verdict jury inquiry, such as an evidentiary hearing, is also demanding. As the Court of Appeals for the Second Circuit has noted, “post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting juryroom deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury
*73
verdicts.”
United States v. Ianniello,
The trial judge is accorded broad discretion in
treating
charges of jury misconduct.
See Wheel v. Robinson,
Therefore, a post-trial evidentiary hearing into alleged juror misconduct or extraneous influence is required only when a party comes forward with “clear, strong, substantial and incontrovertible evidence ... that a specific, non-speculative impropriety has occurred.”
Ianniello,
B.
The defendants’ first allegation regarding Juror # 82’s misconduct is that he failed to disclose that “he had been in jail for a couple of nights when he was in the military.” Rather than offering “clear, strong, substantial and incontrovertible evidence” of this alleged fact, defendants offer hearsay testimony overheard by a prospective juror on May 20, 2004, and transcribed in a declaration dated May 24, 2005, over a year later. The reliability of this hearsay testimony is further undercut in that it was first revealed after the verdict to defendant Stewart’s counsel, rather than to the Court.
Even assuming that this hearsay statement overhead by Prospective Juror #76 is true, there is no evidence that Juror # 82 deliberately answered any question dishonestly, as required by the first prong of the
McDonough
test. Any omission would be more reasonably be construed as a mistake, especially given that Juror # 82 candidly disclosed the Article 15 disciplinary proceeding against him in both answering the questionnaire and in
voir dire
questioning, and further revealed that his brother had been imprisoned. (Juror # 82 Questionnaire at 13, 18; Tr. 397-98.) There is, in fact, a difference between jail, which is normally considered a place for pre-trial detention, and prison, where a convicted defendant is incarcerated for rehabilitation.
See McGinnis v. Royster,
Furthermore, the defendants have completely failed to satisfy the second prong of the McDonough test, which requires a showing that truthful disclosure would have provided a valid basis for a challenge for cause. In fact, the defendants concede in their reply brief that the “mere fact that Juror # 82 had been incar *74 cerated when he was in the military would not have formed a valid basis for striking him for cause.” (Stewart Reply Mem. at 12.) Additionally, Juror #82 had previously testified in response to voir dire questioning that nothing about his military experience or Article 15 disciplinary action would prevent him from being a fair and impartial juror in this case. (Tr. 397-98.)
Accordingly, the defendants’ allegations regarding Juror # 82’s alleged time in jail do not support the motion for a new trial and fail to provide “clear, strong, substantial, and incontrovertible evidence” of any misconduct that would warrant an eviden-tiary hearing.
C.
The defendants’ second allegation against Juror # 82 is that he deliberately withheld his belief that “if someone is in front of the judge on charges, it is because they had done something wrong.” These allegations fail to meet the McDonough test because there is no evidence that Juror #82 deliberately answered any question dishonestly.
The defendants claim that Juror # 82 deliberately misrepresented that he would accept the presumption of innocence, require the prosecution to bear the burden of proof, base his verdict solely on the evidence, and was otherwise able to serve as a fair and impartial juror (Questions 108-10, 113-115). The sole support for this claim is stale hearsay statement recalled merely “in substance” over a year after it was made, which fails to provide a sufficient basis to conclude that the juror lied under oath in response to all of those questions.
Even assuming the hearsay statement is an accurate recollection, the juror’s comment occurred immediately after the juror self-effacingly talked about his own experience in the military, and on its face, the substance of the comment only generally addressed people who appeared before judges. The casual comment was not directed to any defendants or issues in this case, and thus does not specifically contradict the juror’s statements made under oath. Notably, the affidavit of Prospective Juror #76 does not indicate that she reported the comment to the Court or anybody else at the time. If Prospective Juror #76 believed the comment to be significant, plainly the time to raise it was before or immediately after she watched the jury be empaneled, not over a year later after the verdict was rendered.
There is no reasonable basis to conclude that Juror #82’s responses under oath were not truthful, that he could not accept the legal principles he was required to accept, and that he decided the case based solely on the facts and the law. Juror # 82 served conscientiously during a lengthy trial and there is no basis to require him to answer further questions.
III.
A.
Although the defendants avoid characterizing their request to “follow up” and conduct an inquiry regarding Juror #39 as a request for an evidentiary hearing, that is precisely what they seek. Thus, the relevant standard for determining if post-verdict inquiry is necessary is whether there is “clear, strong, substantial and incontrovertible evidence ... that a specific, non-speculative impropriety has occurred.”
Ianniello,
However, Federal Rule of Evidence 606(b) bars any post-verdict inquiry into “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as
*75
influencing the juror to assent to or dissent from the verdict ... or concerning the juror’s mental processes in connection therewith.... ” Fed.R.Evid. 606(b). There is an exception regarding juror testimony “on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”
Id.
This exception is a narrow one, because even when a juror attests to outside information, “the juror may not go on to testify about the effect of that information on the juror’s mental processes or the jury’s deliberations.”
Bibbins v. Dalsheim, 21
F.3d 13, 17 (2d. Cir.1994) (per curiam). “Where an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror.”
Id.
(quoting
Miller v. United States,
B.
As an initial matter, the Government argues that the Court should not consider any information supporting the defendants’ request that is contained in Ms. Shellow-Lavine’s June 3, 2005 letter, because it was the result of an improper post-verdict juror interview. (Gov’t Mem. at 39^16.) The Court of Appeals for the Second Circuit has unambiguously prohibited parties from questioning jurors after the verdict without at least notice to the Court and opposing counsel.
United States v. Schwarz,
Defense counsel readily concedes that “[i]n hindsight, the interview never should have occurred,” and attribute it to a “failure to communicate among counsel.” (Stewart Reply Mem. at 30.) Counsel for Stewart candidly acknowledged that prior to the interview, “some counsel became aware of
Schivarz,”
and that “[i]t is fair to conclude that had all counsel been aware of the language in
Schwarz
the interview would likely not have occurred.” (6/9/05 Shellow-Lavine Ltr. at 2.) However,
Schwarz
merely restated a long-existing rule within the Second Circuit.
See Moten,
In light of this clear rule and the fact that at least some defense counsel violated it, it would be proper to exclude from
*76
consideration any information garnered from improper contacts with Juror #39.
See Tanner,
Moreover, it is not only the interview statements contained in the Shellow-La-vine letter that is tainted by this post-verdict juror contact, but also the hearsay statements in the June 2 Dratel Declaration. The June 2 Dratel Declaration is based on statements that were obtained by defense counsel after he had indirect contact with the juror through Mr. Masef— without notice to the Court or opposing counsel. To allow parties to circumvent the holdings in
Moten
and
Schwarz
by using indirect parties would undermine the Second Circuit rule against prohibited juror interviews and still permit the evils that the rule seeks to avoid.
See Moten,
The Second Circuit Court of Appeals in
Schwarz
did consider three affidavits from jurors that were obtained in violation of the rule against juror interviews.
Schwarz,
C.
With respect to Juror # 39’s March 25 letter to the Court, the letter alleges “My verdict came about only as a result of the fear and intimidation I was made to feel for my life during the course of deliberations.” (3/25/05 Juror # 39 Ltr. at 1.) On its face, the letter plainly is intended to describe the course of jury deliberations and its effect on the juror’s mind or emotions “as influencing the juror to assent to or dissent from the verdict,” and does not refer to any “extraneous prejudicial information” or “outside influence.” Fed.R.Evid. 606(b). The statements in the letter are therefore barred by Fed. R. Ev. 606(b).
While it is true that there can be some conduct in the jury room short of actual physical violence that may be admissible,
see Anderson v. Miller,
The March 25 letter from Juror # 39 fails to make a specific, credible allegation necessary to warrant further inquiry. In the letter, Juror # 39 complains specifically only about verbal harassment by her fellow jurors. (3/25/05 Juror # 39 Ltr. at 1 (complaining of a “relentless verbal as-sult [sic] on my person and my position”).)
*77
Such “[testimony concerning intimidation or harassment of one juror by another falls squarely within the core prohibition of [Rule 606(b)].”
United States v. Stansfield,
Courts have refused to upset a jury’s verdict over more specific and serious allegations than those alleged here.
See, e.g., Jacobson v. Henderson,
Moreover, there is an independent reason to discount the allegations in the letter. On the day before the verdict, Juror # 39 asked to see the Court, and the Court held an individual conference with the juror (with counsel for the defense and Government present) where the juror said she wanted to write a note about a “clarification” of a “charge.” (Tr. 13054-56.) Thereafter, Juror # 39 submitted a note to the Court asking about a conspiracy charge, which the Court answered. (Court Ex. 158.) At no point did the juror complain about the course of deliberations or suggest that anything untoward was happening or had happened. In refusing to overturn the jury’s verdict, the courts in
Anderson,
D.
Finally, there are the allegations of outside influence that Ms. Shellow-Lavine reported in her June 3 letter to the Court that were allegedly said by the juror at her meeting with the defense lawyers on April 26, 2005, and the statements by the juror’s lawyer to Mr. Dratel reported in the June 2 Dratel Declaration. These statements do not rise to the necessary level of “clear, strong, substantial and incontrovertible evidence ... that a specific, non-speculative impropriety has occurred.”
Ianniello,
Ms. Shellow-Lavine’s statement about what the juror said were hearsay, and Mr. Dratel’s were double hearsay. The juror did not include any of these allegations of outside influence in any affidavit, or even *78 in her letter to the Court. Additionally, the statements of outside influence are internally inconsistent. As Ms. Shellow-Lavine acknowledged in her June 3 letter about the juror’s statement at the meeting, “the sum and substance of what she said differed not only from what she wrote to the Court, but also what Mr. Masef had told Mr. Dratel.” (6/03/05 Shellow-Lavine Ltr. at 2.) The change in the statements attributed to the juror is particularly significant, because while the prior double hearsay appeared to attribute a comment in the course of jury deliberations, the final statement to Ms. Shellow-Lavine discussed a comment allegedly made on the very last day of deliberations. This alleged outside comment would have been made despite juror security having been tightened after an incident with a van driver. Finally, as discussed above, Juror # 39 was readily able to submit notes and meet individually with the Court, and had done so the day before the verdict was rendered, yet the juror failed to inform the Court about this alleged comment or ask for any other conferences.
The increased jury security, taken with the juror’s conference with the Court, the subsequent note to the Court, and the substance of the juror’s March 25 letter all undercut the hearsay (and double hearsay) allegations as to any prejudicial outside influence. There is no support for the earlier double hearsay comment reported by Mr. Masef to Mr. Dratel alleging involvement of court personnel, given that it was not contained in the juror’s letter to the Court or the subsequent interview. Furthermore, even if the hearsay testimony of the final comment is accurate, the final alleged comment heard by Juror # 39 would not rise to the level of a comment that would affect a reasonable juror. The juror asserts hearing somebody identifying her and saying “that’s the holdout.” (6/03/05 Shellow-Lavine Ltr. at 2.) This comment contained no threat. The defendants make much of the fact that the jurors were anonymous, but there is nothing about the comment that reveals the identity of the juror or even relates to the anonymity of the jury.
Thus, without any “clear, strong, substantial and incontrovertible evidence” of a threat or other prejudicial outside influence, the Court follows the Supreme Court’s admonition to shield jury deliberations from public scrutiny. As the Supreme Court has repeatedly directed:
[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.
Tanner,
CONCLUSION
For the reasons stated above, the defendants’ applications are denied.
SO ORDERED.
Notes
.
Stewart
noted that the Second Circuit Court of Appeals remanded only one case,
United States v. Colombo,