PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14-2042

_______________

UNITED STATES OF AMERICA

v.

ISA NOEL,

Appellant

_______________

On Appeal from the District Court

of the Virgin Islands

(D.V.I. No. 3:13-cr-00031-002)

Honorable Curtis V. Gomez, U.S. District Judge

_______________

Argued: May 22, 2018

Before: KRAUSE, ROTH, and FISHER, Circuit Judges

(Opinion Filed: September 26, 2018)

Joycelyn Hewlett

Meredith J. Edwards [Argued]

Nelson L. Jones

Office of United States Attorney
2

5500 Veterans Drive, Suite 260

United States Courthouse

St. Thomas, VI 00802

Counsel for Plaintiff-Appellee United States of 

America

Alvin E. Entin

Entin & Della Fera, P.A.

633 South Andrews Avenue, Suite 500

Fort Lauderdale, FL 33301

John R. Howes [Argued]

633 South Andrews Avenue

Fort Lauderdale, FL 33301

Counsel for Defendant-Appellant Isa Noel

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

Chief among several questions presented by this 

criminal appeal is what showing a defendant must make to 

warrant an evidentiary hearing when moving for a new trial 

on the ground of newly discovered evidence of juror 

misconduct. We are also called upon to consider the extent to 

which the Confrontation Clause entitles a defendant to crossexamine government witnesses who testify pursuant to 

cooperation agreements about the sentence reductions they 
3

expect to receive in exchange. Because we conclude that the 

Defendant’s new trial motion did not make the requisite 

showing to warrant a hearing and that the District Court’s 

limitation on cross-examination did not contravene the 

Confrontation Clause, we will affirm.

I. Background

This appeal arises from a drug trafficking conspiracy 

in which several personnel at a Virgin Islands airport 

smuggled cocaine onto commercial flights bound for the 

United States mainland. In August 2013, a federal grand jury 

returned an indictment charging Appellant Isa Noel, a ground 

services supervisor at St. Thomas’s Cyril E. King Airport,

and three of his fellow airport personnel with conspiracy to 

possess with intent to distribute cocaine and related 

possession offenses. After a three-day trial, the jury 

convicted Noel on all charges, and the District Court 

sentenced him to 151 months’ imprisonment. More than a 

year later, Noel filed a motion for a new trial on the ground of 

newly discovered evidence of juror misconduct, which the 

District Court denied without a hearing.

Noel timely appealed,1 challenging numerous orders 

across various stages of the proceedings but focusing 

 1 After appealing from his convictions and sentence, 

Noel filed his new trial motion. We remanded to the District 

Court, which entered an order denying the motion. See Fed. 

R. App. P. 27; 3d Cir. L.A.R. 27.4. Seeking to appeal that 

order as well, Noel filed a motion to recall the mandate and 

for leave to file supplemental briefing. We granted that 

motion and now address both the merits of Noel’s original 
4

primarily on the sufficiency of the evidence, the District 

Court’s rulings on cross-examination, and its denial of his 

motion for a new trial. Before turning to the merits, we 

recount the proceedings pertinent to the challenged orders.

A. The Trial

1. Jury Selection

During the preliminary proceedings, the District Court 

conducted voir dire and, over Noel’s objection, impaneled a 

security officer working on a contract basis for the U.S. 

Marshals Service. In response to the District Court’s 

questioning, that officer—who later became Juror No. 11—

denied having a relationship by “blood, marriage[,] or 

business” with Noel or having “read or heard anything about 

th[e] case.” App. 66–67. But when the District Court asked 

whether any juror was “involved in the criminal justice 

system,” Juror No. 11 indicated that he was, which led to the

following exchange:

THE COURT: Okay. You raised your card . . . 

. Tell us why.

JUROR MEMBER: I worked 26 years as a 

correction[s] officer and I [have] been involved 

in making the arrests and support and all that 

stuff.

 

appeal and the denial of his new trial motion. See 3d Cir. 

I.O.P. 7.2. 
5

THE COURT: Were you involved in any arrest 

in this case?

JUROR MEMBER: No.

THE COURT: All right. You’re currently 

employed by whom?

JUROR MEMBER: I’m retired now but I have 

a contract with the U.S. [M]arshal[]s office.

App. 76–77. Although it elicited assurances that Juror No. 11

could follow its instructions and remain impartial, the District 

Court did not inquire further into the juror’s specific duties 

with the U.S. Marshals Service, nor did Noel. 

Instead, citing the juror’s involvement “in law 

enforcement . . . [p]roviding security,” Noel moved to strike 

him from the jury. App. 78. After soliciting the 

Government’s position—that the juror “indicated he had no 

dealings with the[] particular defendants in th[e] case,” App. 

78—the District Court denied Noel’s motion; Juror No. 11

was impaneled; and the parties proceeded to trial. 

2. The Evidence

Over the course of the trial, the Government presented 

the testimony of Noel’s three former codefendants—Edisson

Peguero Ortiz, Joelvis Acosta Liz (Acosta), and Kirsten 

Alexander—who had each since entered into plea agreements 

with the Government. The Government also offered the 

testimony of an additional cooperating witness and several 

law enforcement officers as well as phone records, airport 
6

surveillance footage, physical evidence, and a joint stipulation

to the amount of cocaine seized by law enforcement. 

Ortiz and Acosta testified that they were involved in a 

cocaine distribution venture with Noel and that, as many as 

nine times, they received cocaine from a third party, 

facilitated its transportation through the airport into the 

baggage of ticketed passengers, and split the profits. Noel’s 

role, they testified, was critical: As a ground services 

supervisor, he had access to restricted doors, allowing them to 

bypass TSA checkpoints. Their testimony was corroborated 

by a confidential informant and his law enforcement handler. 

The informant testified that, during a meeting at Acosta’s 

house, Acosta and Noel agreed to transport cocaine for him 

and that he twice gave them sham cocaine outside the airport, 

which was then returned to him inside the airport. The 

handler, who surveilled the meetings and provided the sham 

cocaine, confirmed these facts.

 

In addition to this evidence about the conspiracy’s 

structure and purpose, the jury heard about the particular 

transactions underlying Noel’s two possession charges. The 

first transaction, Ortiz and Acosta testified, involved a foiled

attempt to transfer six kilos of cocaine to a courier. Ortiz 

gave the cocaine to Noel the night before, and Acosta and 

Noel transported it, concealed in their waistbands, from the 

employee locker room to the airport bathroom where they 

were met by the courier. A surveilling law enforcement 

officer testified that he “pursued” the courier to “the handicap 

stall,” “climbed on the toilet next door and looked over,” and 

ultimately discovered the courier “standing in front of the 

toilet . . . on the phone,” with a “black[] suitcase sitting on the 

toilet,” “unzipped but not open.” Second Addendum to App. 
7

(Addendum) 373–74. Inside that suitcase the law 

enforcement officer found several brick-shaped packages, 

which the Government introduced as evidence and which the 

parties stipulated amounted to approximately seven kilos of 

cocaine.2

 The Government’s evidence also included airport 

surveillance footage that showed Acosta, Noel, and the 

courier walking to and from the bathroom in succession and 

phone records that reflected eighty-one calls made that day 

between Ortiz, Acosta, and a phone number that, although 

subscribed in a different name, the Government asked the 

jury to infer, “us[ing] [its] common sense,” was used by Noel. 

Addendum 510. 

The second transaction took a similar form but went a 

step further before also being thwarted. In that instance, 

according to the testimony of codefendant Alexander,

Alexander was at work at the airport in the employee break 

room when Noel, his supervisor, called him on the phone. 

Noel then came to the break room, asked Alexander to “take a 

package to one his friends . . . in the bathroom” inside the 

airport, and gave him access to do so through a restricted 

door. Addendum 126. 

The “friend,” a courier who testified as a cooperating 

witness for the Government, explained that he received the 

cocaine from Alexander in a bathroom stall and then boarded 

a plane to Miami, and surveillance footage showed the pair

walking to and from the bathroom. The transaction was also 

 2 Although Ortiz and Acosta estimated that the cocaine 

weighed six kilos, a lab analysis reflected a heavier weight to 

which the parties stipulated. 
8

corroborated by phone records reflecting twelve calls made 

that day between Alexander and the same phone number used 

in the first transaction, as well as the testimony of a

Homeland Security agent who described the courier as 

“appear[ing] visibly nervous” and “sweating profusely” after 

disembarking the plane in Miami. Addendum 147. Upon the 

courier’s arrest, agents recovered from his luggage a brickshaped package that the parties eventually stipulated 

amounted to about one kilo of cocaine and that was also 

introduced as a government exhibit. 

3. Cross-Examination Rulings

Because codefendants Ortiz, Acosta, and Alexander 

each testified pursuant to cooperation agreements with the 

Government, Noel attempted to undermine their credibility by 

cross-examining them about the sentence reductions they 

hoped to receive in exchange. The District Court allowed 

some, but not all of the lines of questioning that Noel sought 

to pursue.

On the one hand, the District Court permitted each 

codefendant to confirm, in broad strokes, the benefits secured 

by their agreements. Noel was able to question the 

codefendants about the reduction of otherwise substantial 

sentences, the Government’s agreement to drop or not pursue 

additional charges,3 the codefendants’ release from federal 

 3 Acosta pleaded guilty to a conspiracy charge as to 

seven kilos, despite personally possessing thirty-two, and the 

Government dropped a possession charge; Alexander pleaded 

guilty to misprision of a felony, and the Government dropped 

a conspiracy charge; and Ortiz pleaded guilty to conspiracy—
9

custody pending sentencing, and the possibility of a greater 

sentence reduction, should their testimony be satisfactory. In 

addition, each of the codefendants disclosed that they had 

reviewed the Government’s case against Noel prior to trial. 

On the other hand, the District Court foreclosed 

inquiry as to the codefendants’ precise sentencing exposure, 

explaining that this limitation was necessary to prevent the 

jury from inferring the sentence Noel himself was facing: 

Punishment is not ever something the jury is to 

have in their mind, so I’m not going to permit 

you to go into anything that gives some specific 

outline about what a sentence might be. The 

defendant is on trial for a drug conspiracy, and 

this defendant pled guilty to a drug conspiracy. . 

. . Now, if you want to suggest that he was . . .

exposed to . . . a considerable amount of time,

and he is, by his performance today he is 

essentially singing for his supper, you can 

certainly explore that. But I’m not going to 

have you go into things like mandatory or 

specific sentences like 10 years or maximum of 

life . . . . Because if it’s going into anything 

that deals with sentence or punishment, I don’t 

want the jury to be connecting up the dots and 

say: Well, here’s what Mr. Noel is facing.

Addendum 24–25.

 

the only charge for which he was indicted—but the 

Government agreed to reduce his exposure from about ten 

kilos to seven.
10

When it came time for closing arguments, Noel used

the testimony he had elicited to impugn the codefendants’

veracity and motivation for testifying. He described them, for 

example, as “self-confessed crooks, liars, [and] convicts . . . 

looking out for the best interests of only themselves,” and 

urged the jury to discredit their testimony because they had 

“one goal”—to “serve[] less jail time”—and their eyes were 

on the “golden trophy”: a recommendation from the 

Government “to reduce their substantial sentence[s] even 

further.” Addendum 485–86.

The jury deliberated for about four hours before 

reaching a guilty verdict on all counts. 

B. The New Trial Motion

More than eighteen months after his convictions, Noel, 

alleging that he had recently discovered evidence of 

“significant juror misconduct,” filed a motion for a new trial. 

App. 32. That motion explained that Noel had recently 

subpoenaed records from the U.S. Marshals Service,

including a job description and time sheets that, according to 

Noel, cast doubt on the veracity of Juror 11’s responses at 

voir dire. The job description revealed that Juror No. 11 

served as a “District Security Officer” responsible for, among 

other tasks, guarding federal detainees and transporting them 

to and from court. App. 51. The time sheets also indicated, 

without any further detail, that Juror No. 11 worked “in court 

with prisoners” on the date of Noel’s and two codefendants’ 

preliminary appearances and that he provided “support to the 

airlift” the following day and on the day another codefendant

was arraigned. App. 59, 61 (capitalization omitted). Based 
11

on those records, Noel hypothesized that Juror No. 11 

attended and transported Noel and his codefendants to and 

from those appearances and may have provided their 

transportation to other court proceedings. Failing to disclose 

that information on voir dire, Noel asserted, reflected material 

dishonesty by Juror No. 11 and deprived Noel of the right to 

an impartial jury. 

The District Court was unconvinced. Going so far as 

to “[a]ssum[e] that Juror No. 11 interacted with Noel while 

Juror No. 11 worked as a contract employee with the United 

States Marshals,” the District Court identified three pertinent 

voir dire questions that Juror No. 11 may have answered 

incorrectly: (1) whether he had a prior relationship with the 

defendant; (2) whether he had read or heard anything about 

the case; and (3) whether he had been involved in any arrest 

in the case. Suppl. App. 34. It reasoned, however, that

because the juror “freely admitted” that he worked for the 

Marshals Service and Noel did not recognize the juror at trial,

Juror No. 11 likely “did not recognize Noel either,” rendering 

his answers “even if incorrect,” still “honest[] respon[ses] to 

the Court’s inquiries.” Suppl. App. 33–34. The District 

Court therefore denied the new trial motion without a hearing, 

and this appeal followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. § 

3231, and we have jurisdiction under 18 U.S.C. § 3742 and 

28 U.S.C. § 1291. We review for abuse of discretion the 

District Court’s decision to deny a new trial motion, United 

States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006), and to 

limit cross-examination, United States v. Ellis, 156 F.3d 493, 
12

498 (3d Cir. 1998), exercising plenary review where that 

discretion turns on the scope of the Confrontation Clause, 

United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998). 

We review the sufficiency of the evidence “from the 

perspective of a reasonable juror,” upholding the verdict “as 

long as it does not ‘fall below the threshold of bare 

rationality.’” United States v. Caraballo-Rodriguez, 726 F.3d 

418, 431 (3d Cir. 2013) (en banc) (quoting Coleman v. 

Johnson, 566 U.S. 650, 656 (2012) (per curiam)).

III. Discussion

Noel makes three principal arguments on appeal: (A) 

that the District Court’s limitation on the cross-examination 

of his codefendants violated his rights under the 

Confrontation Clause; (B) that the District Court abused its 

discretion in denying, without an evidentiary hearing, his new 

trial motion; and (C) that the evidence was insufficient to 

support the verdict. We address these issues in turn.4

 4 We will not address in detail two additional 

arguments raised in Noel’s brief: (1) the introduction of 

certain phone records; and (2) his sentence, which Noel had 

argued should be vacated and remanded. Because the phone 

records were largely cumulative of abundant properlyadmitted evidence, and counsel conceded at oral argument 

that they did not have “an overall bearing on the outcome of 

the trial,” Oral Arg. at 40:16–40:21, available at 

http://www2.ca3.uscourts.gov/oralargument/audio/14-

2042_USAv.Noel.mp3, their admission cannot constitute 

prejudicial error, see United States v. Browne, 834 F.3d 403, 

416–17 (3d Cir. 2016), cert. denied, 137 S. Ct. 695 (2017). 

As for his sentence, although Noel in his brief argued that we 
13

A. The Cross-Examination Limitation

Noel contends that the District Court, by precluding

cross-examination on the specific details of his codefendants’

sentencing exposure, violated his rights under the 

Confrontation Clause. However, because the District Court 

did permit cross-examination in more general terms about the 

codefendants’ sentencing reductions and other benefits of 

cooperation, and we are persuaded that this information was 

“sufficient . . . , without the excluded evidence, to make a 

discriminating appraisal of the possible biases and motivation 

of the witness[],” we perceive no error, much less 

constitutional error, in the limitation on cross-examination in 

this case. United States v. Chandler, 326 F.3d 210, 219 (3d 

Cir. 2010) (quoting Brown v. Powell, 975 F.2d 1, 4 (1st Cir. 

1992)).

The Confrontation Clause guarantees a criminal 

defendant the right to “be confronted with the witnesses 

against him.” U.S. Const. Amend. VI. Primary among those 

rights is “the right of cross-examination,” which may include 

questions “directed toward revealing possible biases, 

prejudices, or ulterior motives of the witness.” Davis v. 

 

should vacate and remand for resentencing in light of an 

intervening amendment to the Sentencing Guidelines, counsel 

conceded at argument that Noel already “got the benefit” of 

that amendment. Oral Arg. at 41:21–41:24. And wisely so, 

because the District Court, anticipating its future adoption, 

sentenced Noel in accordance with the amendment. Both of 

these arguments thus lack support in the record and were 

essentially withdrawn by Noel.
14

Alaska, 415 U.S. 308, 315–16 (1974) (citations omitted). 

Despite this guarantee, trial judges retain “wide latitude . . . to 

impose reasonable limits on . . . cross examination,” which a 

defendant may overcome by showing that, had the proposed 

line of inquiry been permitted, the jury “might have received 

a significantly different impression of [the witness’s] 

credibility.” Delaware v. Van Arsdall, 475 U.S. 673, 679–80 

(1986).

In light of these principles, in United States v. 

Chandler, we derived from Van Arsdall a two-part test to 

determine whether a particular limitation on crossexamination violated a defendant’s rights under the 

Confrontation Clause. 326 F.3d at 219. First, we determine

whether the limitation “significantly inhibited [the 

defendant’s] effective exercise of her right to inquire into 

[the] witness’s ‘motivation in testifying.’” Id. (quoting Van 

Arsdall, 475 U.S. at 678–79). Then, if it did, we ask whether 

the limitation fell within “those ‘reasonable limits’ which a 

trial court, in due exercise of its discretion, has authority to 

establish.” Id. Whether the trial court abused its discretion, 

we explained, “depends on whether the jury had sufficient 

other information before it, without the excluded evidence, to 

make a discriminating appraisal of the possible biases and 

motivation of the witness[],” id. (citation omitted), or, 

conversely, whether without the limitation, “a reasonable jury 

could have ‘reached a significantly different impression’ of 

[the witness’s] credibility,” id. at 222 (quoting Van Arsdall, 

475 U.S. at 680).

On the facts of Chandler, we concluded that the 

district court’s limitation violated the Confrontation Clause. 

There, the trial court allowed a witness to testify that he 
15

pleaded guilty to carrying a smaller amount of drugs than he 

had actually carried and that he received only one month of 

house arrest plus probation even though the offense to which 

he pleaded guilty carried a possible twelve to eighteen-month

sentence. Id. at 221–22. But the trial court did not permit 

testimony that, had the witness not cooperated with the 

Government, he may have faced “more than eight years in 

prison.” Id. at 222. Considering the extent of that 

discrepancy, we held that “the limited nature of [the 

witness’s] acknowledgment that he had benefited from his 

cooperation made that acknowledgment insufficient for a jury 

to appreciate the strength of his incentive to provide 

testimony that was satisfactory to the prosecution.” Id. At 

the same time, we were careful not to resolve “whether the 

Confrontation Clause entitles a defendant categorically to 

inquire into the ‘concrete terms’ of a cooperating witness’s 

agreement with the [G]overnment, including the specific 

sentence that witness may have avoided through his 

cooperation.” Id. at 221.

Two years later, in United States v. Mussare, we 

explicitly “decline[d] to . . . hold” that “such a categorical 

right exists.” 405 F.3d 161, 170 (3d Cir. 2005). Because 

there, the trial court permitted extensive testimony regarding 

the plea agreement—including that the witness “expected to 

have all federal charges against him dismissed, face only state 

charges, and receive no jail time” and that “absent his 

cooperation, [the witness] would [have been] facing the exact 

same charges as [the defendants]”—we concluded that “the 

actual number of years in jail that [the witness] would 

otherwise have faced was not likely to have altered the jury’s 

impression of his motive for testifying.” Id.
16

And more recently in United States v. John-Baptiste, 

where the district court had “allowed testimony regarding the 

witnesses’ agreements to cooperate with the [G]overnment 

and the fact that they expected to receive more lenient 

sentences in return,” we likewise concluded that its exclusion 

of testimony about “specific sentences that could have been 

imposed if the witnesses had refused to cooperate—a line of 

questioning that we have allowed trial courts to curtail”—was 

not likely to have altered the jury’s impression of credibility. 

747 F.3d 186, 212 (3d Cir. 2014) (emphasis omitted).

Together, these cases hold that there is no absolute

right to inquire into the precise sentence a government 

witness might face absent his cooperation and that a district 

court may limit the scope of cross-examination to more 

general inquiries about his expected benefits. Such limitation 

is permissible under the Confrontation Clause unless “the jury 

might have ‘received a significantly different impression of 

[the witness’s] credibility’” had it not been imposed, which 

we assess using Chandler’s two-part test. 326 F.3d at 219. If 

the reviewing court determines that the jury indeed might 

have received a significantly different impression of the 

witness’s credibility, the trial court has necessarily exceeded 

the “‘reasonable limits’ which [it], in due exercise of its 

discretion, has authority to establish.” Id. at 219.

5

 

5 As we make clear today, the question whether a 

reasonable jury “might have received a significantly different 

impression of [the witness’s] credibility,” Van Arsdall, 475 

U.S. at 680, pertains at the second step of the Chandler 

inquiry, i.e., whether the limitation fell within the bounds of 

the trial court’s discretion, not at the first step, i.e., whether 
17

Here, the limitation imposed by the District Court fell 

comfortably within constitutional bounds. As in Mussare and 

John-Baptiste, the District Court imposed a single narrow 

restriction: It instructed defense counsel not to “go into 

 

the limitation “significantly inhibited” the defendant’s right to 

inquiry into the witness’s motivation for testifying. Our 

precedent has not always been so clear on this point.

Compare, e.g., Chandler 326 F.3d at 219 (explaining that the 

question whether a reasonable jury might have received a 

different impression of the witness’s credibility equates to 

“[w]hether a trial court has abused its discretion”), with id. at 

223 (proceeding, even after having concluded “a reasonable 

jury could have ‘reached a significantly different impression’ 

of [the witness’s] credibility,” to inquire whether the 

limitation “nevertheless fell within the District Court’s 

discretion”), and Mussare, 405 F.3d at 169 (interpreting 

Chandler to mean “that the proper inquiry under the first 

prong [i]s ‘whether . . . the jury might have received a 

significantly different impression of [the witness’s] 

credibility”). However, once a defendant “show[s] that . . . 

[a] reasonable jury might have received a significantly 

different impression of [the witness’s] credibility had 

[defense] counsel been permitted to pursue his proposed line 

of cross-examination,” he already has “state[d] a violation of 

the Confrontation Clause.” Van Arsdall, 475 U.S. at 680. 

Thus, it would hardly make sense to ask at that point whether 

the limitation “nevertheless fell within the District Court’s

discretion,” Chandler 326 F.3d at 223, for the bounds of a 

trial court’s discretion, broad as they may be, do not exceed 

those of the Constitution. 
18

things like mandatory or specific sentences like 10 years or 

maximum of life, fines, or any of that sort of stuff.” 

Addendum 24. But it expressly permitted counsel to explore 

the codefendants’ agreements with the Government, to elicit

that they were “exposed to . . . a considerable amount of 

time,” and to suggest that, “by [their] performance today 

[they are] essentially singing for [their] supper.” Addendum

24. Noel’s counsel did just that, eliciting from Ortiz, Acosta, 

and Alexander6 that the Government agreed to drop charges 

or significantly limit liability under existing charges, to

release them from custody pending sentencing, and, as to 

Ortiz and Acosta, to refrain from bringing additional charges. 

And that testimony was sufficient for counsel to argue in 

closing that the codefendants were “self-confessed crooks, 

liars, [and] convicts” who had “one goal,” to serve less jail 

time, and would say anything to win the “golden trophy” of a 

recommendation “to reduce their substantial sentence[s] even 

further.” App. 485–86.

In short, even assuming the District Court’s limitation 

“significantly inhibited” Noel’s exercise of his right to probe 

the codefendants’ “motivation in testifying,” Chandler, 326 

F.3d at 219, we cannot say on this record that the line of 

inquiry barred by that limitation might have given the jury a

“significantly different impression of [the codefendants’] 

credibility,” id. at 221 (quoting Van Arsdall, 475 U.S. at 680). 

 6 A fourth witness, Alan Pacquette, the courier who

had been detained since his arrest in Miami, denied testifying 

pursuant to a cooperation agreement or in hope of a sentence 

reduction. 
19

The limitation therefore did not violate the Confrontation 

Clause.

B. Denial of the New Trial Motion

Noel next contends that the District Court abused its 

discretion by denying, without a hearing, his motion for a 

new trial on the ground of newly discovered evidence of juror 

misconduct—namely, that Juror No. 11 allegedly provided 

false voir dire responses in view of the time sheets reflecting 

his work “in court with prisoners” and providing “support to 

the airlift” on dates when Noel or his codefendants had court 

proceedings. App. 59, 61 (capitalization omitted). To prevail 

on a motion for a new trial, the defendant must file the motion 

within fourteen days of the verdict unless the motion is 

grounded on “newly discovered evidence” and he must show 

that a new trial is in the interest of justice. Fed. R. Crim. P. 

33. But the decision whether to grant a new trial or a hearing 

on that motion rests in the district court’s discretion.

7

 

 7 We have long recognized that the broad bounds of a 

district court’s discretion over a new trial motion encompass 

the determination whether an evidentiary hearing is 

necessary. See United States v. Herman, 614 F.2d 369, 372 

(3d Cir. 1980); United States v. Iannelli, 528 F.2d 1290, 1294

(3d Cir. 1976); accord United States v. Slatten, 865 F.3d 767, 

791–92 (D.C. Cir. 2017), cert. denied sub nom. Slough v. 

United States, 138 S. Ct. 1990 (2018). And appellate review 

of that broad discretion as to post-trial allegations of juror 

misconduct—“[i]n contrast to allegations . . . made during a 

trial,” United States v. Fumo, 655 F.3d 288, 306 (3d Cir. 

2011) (emphasis in original)—is particularly curtailed. 

Although “a call for a hearing has an inherently reasonable 
20

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 

556 (1984). Where, as here, the motion is premised on an 

allegation of juror misconduct that was “newly discovered” 

more than a year after the verdict and the defendant contends 

he is entitled to a hearing on that motion, he must show both 

(1) that the evidence was indeed “newly discovered,” and (2) 

that it meets the standard we have set for a defendant to show 

that a “specific, nonspeculative impropriety has occurred.” 

United States v. Claxton, 766 F.3d 280, 301 (3d Cir. 2014) 

(citation omitted). If both of these criteria are satisfied, a 

district court’s denial of the motion for a new trial without a 

hearing will be considered an abuse of discretion. Here, 

however, Noel has satisfied neither.

 

ring to it,” United States v. Gilsenan, 949 F.2d 90, 97 (3d Cir. 

1991), one that would recall discharged jurors strikes a more 

discordant note. “It is qualitatively a different thing to 

conduct a voir dire during an ongoing proceeding at which 

the jury is part of the adjudicative process than to recall a jury 

months or years later for that purpose.” Id. at 98 (italics 

added). In view of this distinction, courts “are always 

reluctant to haul jurors in after they have reached a verdict in 

order to probe for potential instances of bias [or] 

misconduct.” Fumo, 655 F.3d at 306 (quoting Gilsenan, 949 

F.2d at 97); accord United States v. Cornelius, 696 F.3d 

1307, 1324–25 (10th Cir. 2012); United States v. Vitale, 459 

F.3d 190, 197 (2d Cir. 2006).
21

1. No Hearing Was Warranted Because the 

Evidence Cannot be Deemed “Newly

Discovered”

First, Noel was not entitled to a hearing because the 

motion was not grounded on “newly discovered” evidence. 

“The test to determine whether evidence is ‘newly 

discovered’ is both objective and subjective . . . .” Cimera, 

459 F.3d at 461. “Evidence is not ‘newly discovered’ if it 

‘was [actually] known or could have been known by the 

diligence of the defendant or his counsel.’” Id. (alteration in 

original) (quoting United States v. Bujese, 371 F.2d 120, 125 

(3d Cir. 1967)); accord United States v. DeRewal, 10 F.3d 

100, 104 (3d Cir. 1993). Only the objective element of that 

test is at issue here, because the Government does not contend

that Noel, at trial, was subjectively aware of the evidence 

pertaining to Juror No. 11’s job duties. The question, then, is 

whether this evidence would have been promptly investigated

and discovered by reasonably diligent counsel given the 

juror’s disclosure of his employment with the U.S. Marshals

Service.

Diligence is a “relative term” that typically “depends 

on the circumstances of the case.” Cimera, 459 F.3d at 461

(citation omitted). Time and again, we have confronted 

situations where we concluded that counsel’s failure to make

further inquiry did not constitute reasonable diligence, but we 

did not articulate a standard by which to judge when notice is

sufficient to require such further inquiry. We do so today, for 

it cannot be that notice of any fact that could conceivably 

prompt further inquiry will defeat a finding of reasonable 

diligence, but without some benchmark, neither could we say 

with confidence how the notice measures up here. A brief 
22

review of our precedent is instructive in deriving a workable 

standard.

In United States v. Iannelli, 528 F.2d 1290 (3d Cir. 

1976), we held that defendants did not diligently pursue 

evidence that the authorization for court-ordered electronic 

surveillance, through which the Government had obtained 

much of its evidence against them, was fraudulent. Id. at 

1291, 1293. Because “the matter of proper authorization was 

warmly contested” at trial and had the potential to render 

inadmissible evidence that was central to the prosecution, we 

reasoned that diligent counsel would have been prompted to 

“subject[] the initials to expert handwriting analysis” 

immediately, rather than waiting until after the defendants 

were convicted. Id. at 1293.

In United States v. Rocco, 587 F.2d 144 (3d Cir. 1978), 

we concluded that a defendant was not diligent in obtaining 

statements from a witness who had appeared at trial but 

invoked his privilege against self-incrimination. Id. at 145, 

148. Although the witness was “the other principal 

participant in the activities for which [the defendant] had been 

convicted” and thus could have potentially provided powerful 

exculpatory testimony, id. at 145, the defendant failed to 

“pursue [the] resolution” of the asserted privilege “as part of a 

sustained effort to compel [the witness’s] testimony” at the 

time of trial, id. at 148. When the defendant then attempted, 

after his convictions, to introduce an affidavit from that 

witness as newly discovered evidence, we concluded that “the 

defense never discharged its responsibility to act diligently in 

procuring the evidence on which it [was] now seek[ing] to 

base its motion for a new trial.” Id.
23

Next, in United States v. Kelly, 539 F.3d 172 (3d Cir. 

2008), we concluded that a defendant who made no effort to 

procure an acquaintance’s testimony in time for trial—

notwithstanding that the acquaintance’s presence at the 

defendant’s arrest and potential ability to corroborate his 

version of events gave him “every reason” to do so—did not 

act diligently in discovering the acquaintance’s later, 

exculpatory statement. Id. at 184. Although we recognized 

that the acquaintance may have been “unable[] or unwilling” 

to provide his testimony at trial, we rejected the notion that 

“potential or anticipated futility” excused the defendant from 

at least attempting to procure it given the realistic possibility 

that he could and the significance it held for the defense, 

concluding, “inaction simply does not qualify as reasonable 

diligence.” Id. at 183–84.

Finally, in United States v. Napolitan, 762 F.3d 297 

(3d Cir. 2014), we held that a defendant was not diligent in 

his alleged discovery that two witnesses at his trial had 

testified falsely. Id. at 307. We reasoned that the defense’s 

limited inquiry of the witnesses while they were on the stand 

and failure “to ask even a single question” regarding the 

relevant statements did not justify the delay in discovering 

only post-conviction that those statements were false, 

particularly because the subject matter was “central to [the] 

defense.” Id. at 306–07.

What we distill from these cases is that notice must 

rise above a certain threshold before a defendant will be 

faulted for failing to act with “reasonable diligence.” After 

all, even the most zealous of counsel cannot be expected to 

inquire into every remote possibility and may reasonably 

prioritize the investigation of matters material to the defense 
24

above those that seem peripheral. Instead, drawing on 

Iannelli, Rocco, Kelly, and Napolitan, we hold that to satisfy 

the diligence standard, counsel must conduct further inquiry 

once the circumstances alert her to the existence of additional 

information that has a reasonable possibility of proving

material to the defense. And when the defense takes no 

action in the face of such notice, it has failed to “discharge[]

its responsibility to act diligently in procuring the evidence on 

which it . . . seeks to base its motion for a new trial.” Rocco, 

587 F.2d at 148.

We note too that this standard, and the obligation it 

imposes on counsel, applies at voir dire no less than at trial. 

As “[o]ne touchstone of a fair trial is an impartial trier of 

fact,” McDonough, 464 U.S. at 554, juror misconduct is 

highly material to the defense. And although “the obligation 

to impanel an impartial jury lies in the first instance with the 

trial judge,” United States v. Cunningham, 694 F.3d 372, 393 

(3d Cir. 2012) (quoting Rosales-Lopez v. United States, 451 

U.S. 182, 189 (1981)), advocates have obligations of their 

own, see McDonough, 464 U.S. at 550 n.2 (recognizing that 

defendants “would be barred from later challenging the 

composition of the jury when they had chosen not to 

interrogate [a juror] further upon receiving an answer which 

they thought to be factually incorrect”). See generally ABA 

Standards for Criminal Justice: Prosecution and Defense 

Function 4–7.3(a), (f) (4th ed. 2015) (describing defense 

counsel’s role in “discharg[ing] effectively the defense 

function in the selection of the jury,” such as by “request[ing]

specific follow-up questions during the selection process 

when necessary to ensure fair juror selection”).
25

Of course, we would not fault a defendant for failing to 

inquire further into voir dire responses that raised no 

potentially material concerns at the time, yet later turned out 

to be demonstrably and materially false. Cf. Williams v. 

Taylor, 529 U.S. 420, 440–44 (2000) (explaining, in the 

habeas context, that a juror’s deliberately misleading voir dire

response excused counsel’s failure to develop a juror bias 

claim in state court). But when the substance of a juror’s voir 

dire responses suggest a reasonable possibility that additional 

information would substantiate a potential conflict or bias, the 

defense has the responsibility to inquire further.

8 It also has 

tools to do so at its disposal, including the ability either to 

“ask further questions that the court considers proper,” Fed. 

R. Crim. P. 24(a)(2)(A), or to “submit further questions that 

the court may ask if it considers them proper,” Fed. R. Crim. 

P. 24(a)(2)(B), or even to subpoena documents, Fed. R. Crim. 

P. 17. A juror’s own failure to volunteer additional facts in 

that circumstance will “ha[ve] no bearing on the question of 

whether [the defendant] took affirmative steps to discover 

that testimony in the first instance.” Kelly, 539 F.3d at 186. 

Rather, “the duty to conduct reasonable diligence,” at voir 

dire—while perhaps differing in degree, though not in kind

from the duty at trial—“lies with the defendant and his 

counsel.” Id.

 8 As our colleagues on the Fourth Circuit have put it, 

defendants may not “sandbag the courts by accepting jurors 

onto the panel without exploring on voir dire their possible 

sources of bias and then, if their gambit failed and they were 

convicted, challenging their convictions by means of posttrial evidentiary hearings based on newly discovered evidence 

of possible juror bias.” Billings v. Polk, 441 F.3d 238, 246 

(4th Cir. 2006).
26

We turn, then, to the question whether Noel satisfied 

that responsibility in this case, and we conclude he did not. 

At voir dire, Juror No. 11 openly admitted that he had a 

decades-long career as a corrections officer and that he was 

working at the time for the U.S. Marshals Service. As that 

agency provided law enforcement and prisoner transportation 

services to the very courthouse in which the jury was being 

empaneled for trial, these disclosures alerted him that there 

was additional information available, such as supplemental 

voir dire responses, court records, and employment records

that had a reasonable possibility of showing that Juror 11 had 

contact with Noel or his codefendants in the course of his job 

duties. Thus, even if Noel at that point “had no reason to 

know the exact substance of [Juror 11’s] potential testimony,

he had every reason to question [the juror] about [it].” Id. at 

184. Indeed, Noel in effect conceded as much on appeal by 

acknowledging that what prompted him to seek out Juror 11’s 

job description and time sheets eighteen months later was a 

“tip” that “this particular juror ha[d] a background in law 

enforcement,” Oral Arg. at 10:23–10:27, 11:32–11:46—the 

very same information, that is, that he had in his possession at 

the time of voir dire. 

In sum, Noel was on notice before Juror 11 was ever 

impaneled of the existence of additional information that had

a reasonable possibility of proving material to the defense, 

and in that circumstance, “[s]itting on [his] hands and 

waiting” for the District Court sua sponte to inquire or for

Juror No. 11 to spontaneously say more “cannot be 

considered—by any definition—reasonable diligence.” Kelly, 

539 F.3d at 186. Because Noel’s motion was not filed on the 
27

basis of “newly discovered” evidence, the District Court did 

not err in denying it without a hearing.

2. No Hearing Was Warranted for the 

Additional Reason That Noel’s Evidence 

Was Insufficient

Noel was not entitled to a hearing for the additional 

reason that he failed to meet the evidentiary standard we 

established in United States v. Claxton for showing that a

“specific, nonspeculative impropriety has occurred.”9

 766 

 9 Where a defendant alleges that a juror was dishonest

at voir dire, the ultimate showing required, that is, the one 

that would warrant vacating the judgment and granting a new 

trial, is (1) that “a juror failed to answer honestly a material 

question on voir dire”; and (2) that “a correct response would 

have provided a valid basis for a challenge for cause.” 

McDonough, 464 U.S. at 556; accord Warger v. Shauers, 135 

S. Ct. 521, 525 (2014). That two-part test balances the right 

to an impartial jury against the countervailing interest of 

finality: Although “[v]oir dire . . . serves to protect” the right 

to a “fair trial [by] an impartial trier of fact,” and “the 

necessity of truthful answers . . . [to] this process . . . is 

obvious,” “[t]o invalidate the result of a [lengthy] trial 

because of a juror’s mistaken, though honest response” would 

undercut the “investment of private and social resources” and 

“the important end of finality.” McDonough, 464 U.S. at 

554–55. But Noel does not contend that his new trial motion, 

on its face, satisfied both McDonough prongs. Rather, he 

argues that the District Court erred in denying that motion 

without holding an evidentiary hearing to verify his

allegations that Juror No. 11 made false statements at voir 
28

F.3d at 301 (citation omitted). In that case, we embraced the

formulation in United States v. Stewart, 433 F.3d 273 (2d Cir.

2006), and held that the defendant must show “clear, strong, 

substantial and incontrovertible evidence that a specific, 

nonspeculative impropriety has occurred” to warrant a 

hearing on a motion for new trial. Claxton, 766 F.3d at 301

(quoting Stewart, 433 F.3d at 302–03). But the evidence 

there “establish[ed] only that, at some unspecified time in the 

past, [the juror] worked with both a government and defense 

witness,” and thus it “d[id] not indicate . . . any possible basis 

for bias beyond having shared a former employer” or “offer[] 

. . . more than speculation that [the juror] even knew the 

witnesses, much less that the juror was biased in the 

[G]overnment’s favor.” Id. We had little need, therefore, to 

scrutinize our formulation or to elaborate on the showing it 

requires. We have such occasion today.

As a threshold matter, we clarify, as has the Second 

Circuit, that the defense need not provide literally 

“incontrovertible” evidence of juror misconduct, id., for if 

“[t]he requirements of ‘strong, substantial and 

incontrovertible evidence’ . . . demand[ed] that the allegations 

be irrebuttable[,] . . . there would be no need for a hearing.” 

United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989).

 

At the same time, the evidentiary standard for 

obtaining a hearing on a new trial motion is necessarily a high 

 

dire and otherwise would have been discharged for cause. 

Thus, we focus here on the threshold showing required for a 

hearing. 
29

one given the interests at stake. On the one hand, we have the 

“obvious” need for “truthful answers by prospective jurors” 

in impaneling “impartial trier[s] of fact,” McDonough, 464 

U.S. at 554, and the proper function of a hearing in this 

context, “to determine what happened, that is to establish the 

historical record,” United States v. Gilsenan, 949 F.2d 90, 97 

(3d Cir. 1991). On the other hand, due respect must be 

accorded a fully litigated jury trial—which involves “an 

important investment of private and social resources,” 

McDonough, 464 U.S. at 555, implicates “the important end 

of finality,” id., and makes us “reluctant to haul jurors in after 

they have reached a verdict in order to probe for potential 

instances of bias,” United States v. Fumo, 655 F.3d 288, 306 

(3d Cir. 2011). Thus, while the evidence of juror misconduct

need not be literally “incontrovertible” to warrant a hearing, it

still must constitute “clear, strong, [and] substantial” evidence 

of a “specific, nonspeculative impropriety.” Claxton, 766 

F.3d at 301 (citation omitted).

That standard can be met in a variety of ways. See, 

e.g., United States v. Vitale, 459 F.3d 190, 193–94, 199–200

(2d Cir. 2006) (involving attorney correspondence confessing 

previously undisclosed connections between a juror and the 

prosecution); United States v. Boney, 977 F.2d 624, 628, 632–

35 (D.C. Cir. 1992) (involving a prosecution’s investigation 

concluding that a juror lied at voir dire about a prior felony); 

Ianniello, 866 F.2d at 543 (involving juror affidavits 

“alleging specific acts of inappropriate conduct”). But 

conjecture is not among them: A district court does not abuse 

its discretion in denying a motion for a new trial without a 

hearing where the defendant “offers nothing more than 
30

speculation” of juror misconduct.

10 Claxton, 766 F.3d at 301; 

accord United States v. Easter, 981 F.2d 1549, 1553 (10th 

Cir. 1992) (finding a hearing unnecessary on a motion “based 

on pure conjecture”).

Ultimately, however, that is all Noel has offered here. 

To be sure, the records he eventually obtained show that Juror 

No. 11 was working at the courthouse on certain dates when

Noel and his codefendants were transported or had court 

appearances and, thus, it is indeed possible that Juror No. 11 

was assigned to their matters. But Noel made no effort to 

substantiate that possibility, or even to raise it from 

possibility to probability. While he could have sought to do 

so through a variety of means—for example, affidavits, cf. 

Ianniello, 866 F.2d at 543, or credible reports, cf. Boney, 977 

F.2d at 632–35, or even his own attestation based on personal 

observations about the relative size of the courthouse, number 

of courtrooms, or number of court proceedings—he rested his 

motion instead on records showing only that Juror No. 11 was 

working on some of the same days that Noel and his codefendants were processed and that they therefore might have 

crossed paths.

 10 Of course, there are also many other circumstances 

when a district court might forgo a hearing, such as where the 

motion is capable of resolution on the existing record, e.g., 

United States v. Richards, 241 F.3d 335, 344 (3d Cir. 2001), 

grounded on evidence that is not newly discovered, e.g., id. at 

343; United States v. Forbes, 790 F.3d 403, 411 (2d Cir. 

2015), or based on allegations that, even if true, would not 

lead to relief, e.g., Fumo, 655 F.3d at 306–07; Gilsenan, 949 

F.2d at 97.
31

And more to the point, none of those records

constituted “clear, strong, [and] substantial” evidence of false 

voir dire responses, Claxton, 766 F.3d at 301 (citation 

omitted). In response to the District Court’s inquiries, Juror 

No. 11 indicated that he did not (1) have a relationship with 

the defendant, (2) read or hear anything about the case, or (3) 

have any involvement with any arrest in the case. But the 

“newly discovered” job description and time sheets do not 

show that those responses were inaccurate, much less 

dishonest, and in the context of a motion that would 

undermine the finality of a jury verdict, the District Court was 

within its discretion to investigate no further.11 Having 

presided over the voir dire proceeding, having observed the 

prospective jurors, and having reviewed the voir dire

transcript and the purported “newly discovered evidence” on 

which Noel based his new trial motion, the District Court 

 11 It is not unreasonable to think, as the District Court 

surmised, that even if Juror No. 11 did have contact with Noel 

or his codefendants, he either did not notice or did not recall 

by the time of trial, about four months later. But had there 

been objective evidence that the juror’s responses were not 

accurate, such suppositions might not be sufficient to forgo a 

hearing. As the Second Circuit observed in Stewart, “if any 

significant doubt as to a juror’s impartiality remains in the 

wake of objective evidence of false voir dire responses, an 

evidentiary hearing generally should be held,” 433 F.3d at 

306, but “[t]he inquiry should end whenever it becomes 

apparent to the trial judge that reasonable grounds to suspect 

prejudicial jury impropriety do not exist,” id. at 303 (citation 

omitted).
32

reasonably concluded that Noel had not produced the 

requisite “clear, strong, [and] substantial” evidence that a 

“specific, nonspeculative impropriety ha[d] occurred,” id.

(citation omitted), and we will defer to that finding in light of 

the District Court’s “intimate familiarity with the facts of 

th[e] case,” Gov’t of the V.I. v. Lima, 774 F.2d 1245, 1251 (3d 

Cir. 1985).

* * *

In sum, both because Noel failed to establish that his

new trial motion was grounded on newly discovered 

evidence, that is, on evidence that could not have been 

discovered through counsel’s reasonable diligence, and 

because he failed to produce “clear, strong, [and] substantial” 

evidence that a “specific, nonspeculative impropriety ha[d]

occurred,” Claxton, 766 F.3d at 301 (citation omitted), we 

conclude that the District Court did not abuse its discretion

when it declined to hold a hearing and denied Noel’s motion 

for a new trial.

C. Sufficiency of the Evidence

Finally, Noel’s challenge to the sufficiency of the 

evidence is meritless. As for the conspiracy charge, the 

Government amply demonstrated “(1) a shared unity of 

purpose; (2) an intent to achieve a common illegal goal; and 

(3) an agreement to work toward that goal.” CaraballoRodriguez, 726 F.3d at 425. Ortiz testified that he, Acosta, 

and Noel had an “agreement” to distribute cocaine for profit, 

Addendum 8, and Noel’s codefendants testified to his 

essential role and the sharing of profits among the 

coconspirators. See United States v. Gibbs, 190 F.3d 188, 
33

199–200 (3d Cir. 1999) (explaining that “repeated, familiar 

dealings” support the inference of a defendant’s knowledge of 

her role in a larger operation).

Likewise, the trial record is replete with evidence 

supporting the substantive counts of possession with intent to 

distribute. On the first count, trial testimony established that 

Noel received six kilos of cocaine that he and Acosta 

transferred the next day from the employee locker room to a 

courier in the bathroom. As to the second, Alexander 

testified that, at Noel’s direction, he delivered a package of 

cocaine to Noel’s “friend,” who then flew to Miami and was 

arrested after the cocaine was found in his luggage. That is to 

say nothing of the testimony of the confidential informant and 

law enforcement agents, as well as airport surveillance video 

footage, phone records, and the parties’ stipulations to the 

amount of cocaine seized by law enforcement. In sum, “[t]he 

evidence was more than sufficient; it was overwhelming.” 

United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014).

IV. Conclusion

For the foregoing reasons, we will affirm Noel’s 

convictions and sentence.