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broad discretion to decide Rule 33 motions based upon its evaluation of the proof produced” and is shown deference on appeal.30
A Rule 33 motion based on a juror's alleged erroneous response during voir dire is governed by McDonough Power Equipment, Inc. v. Greenwood.31 Under McDonough, a party seeking a new trial “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.”32
The District Court applied the McDonough standard, found Juror 50's testimony credible, and determined that Juror 50's erroneous responses during voir dire were “not deliberately incorrect” and that “he would not have been struck for cause if he had provided accurate responses to the questionnaire.”33 In fact, as the District Court noted, Maxwell did not challenge the inclusion of other jurors who disclosed past experience with sexual abuse, assault, or harassment. This is
30 United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995) (citation and internal quotation marks omitted).
31 464 U.S. 548 (1984).
32 Id. at 556.
33 A-340 (emphasis added). The Supreme Court reminds us that “[t]o invalidate the result of a [ ] trial because of a juror's mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give.” McDonough, 464 U.S. at 555.