Full opinion text
HALL, Circuit Judge. Defendants Martha Stewart and Peter Bacanovic appeal from the final judgments of conviction entered July 20, 2004 in the United States District Court for the Southern District of New York. Following trial before the Honorable Miriam Goldman Cedarbaum, the jury found Stewart and Bacanovic guilty of conspiracy, concealing material information from and making false statements to government officials, and obstructing an agency proceeding; the jury also found Bacanovic guilty of perjury. On March 17, 2004, this Court granted Stewart’s request for an expedited partial remand to permit the District Court to reconsider her sentence in light of United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). On remand, the District Court decided not to modify the sentence that was imposed on July 16, 2004. United States v. Stewart, No. 03 CR 717(MGC), 2005 WL 831272 (S.D.N.Y. Apr.11, 2005). Bacanovic requests remand of his sentence under Crosby at this time. For the reasons set forth below, we conclude that none of the numerous grounds upon which Defendants challenge their convictions provides a basis to disturb the jury’s verdict and, therefore, we affirm the judgments of the District Court and remand the case solely for consideration of whether to modify Bacanovic’s sentence. BACKGROUND A. Procedural history Defendants Martha Stewart and Peter Bacanovie were charged in Superseding Indictment SI 03 Cr. 717 with offenses that arose from their communications to government investigators who were probing trading activity of ImClone Systems, Inc. (“ImClone”) stock on December 27, 2001, just ahead of the company’s public announcement that its lead pharmaceutical product would not receive government approval. Count One charged that Defendants conspired to obstruct justice, make false statements and commit perjury in violation of 18 U.S.C. § 371; Count Two charged Bacanovie with making false statements in violation of 18 U.S.C. § 1001(a)(1) and (2), and Counts Three and Four charged Stewart with the same offense; Count Five charged Bacanovie with making and using a false document in violation of 18 U.S.C. § 1001(a)(3); Count Six charged Bacanovie with perjury in violation of 18 U.S.C. § 1621; Counts Seven and Eight charged Bacanovie and Stewart, respectively, with obstructing an agency proceeding in violation of 18 U.S.C. § 1505; and Count Nine charged Stewart with securities fraud in violation of 15 U.S.C. §§ 78j(b), 78ff and 17 C.F.R. § 240.10b-5. The trial lasted five weeks. At the close of evidence, pursuant to Fed.R.Crim.P. 29, the District Court granted Stewart’s motion for judgment of acquittal as to Count Nine. The jury deliberated for three days and returned a verdict convicting Stewart on specifications in Counts One, Three, Four and Eight and convicting Bacanovie on specifications in Counts One, Two, Six and Seven. The jury acquitted Stewart of one specification in Count Three and one specification in Count Four and acquitted Bacanovie of falsifying a worksheet document as charged in Count Five, as well as one specification in Count Two and several specifications in Count Six. The District Court denied Defendants’ post-trial motions for a new trial. On July 16, 2004, the District Court sentenced each Defendant to five months’ incarceration to be followed by a two-year period of supervised release, five months of which were to be served in home confinement. Stewart and Bacanovie were ordered to pay fines of $30,000 and $4,000, respectively, as well as a mandatory $400 special assessment. Anticipating a decision from the Supreme Court addressing the United States Sentencing Guidelines, the District Court stayed execution of the sentences pending appeal. The stays were subsequently vacated and amended judgments of conviction were entered as to Stewart on September 22, 2004, and as to Bacanovie on December 29, 2004. In this appeal, Stewart, who had already served the period of incarceration, requested immediate remand of the supervised release portion of the judgment, pursuant to Crosby, to give the District Court an opportunity to consider whether to modify the sentence in light of the Supreme Court’s intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). This Court granted Stewart’s application and, on remand, the District Court declined to modify the original sentence, concluding that it would have imposed the same sentence even if the Sentencing Guidelines had not been mandatory at the time of sentencing. See Stewart, 2005 WL 831272 at *1. Bacanovic, who completed the incarceration portion of his sentence in June 2005, now requests that his sentence be remanded to the District Court for consideration of whether to modify under Crosby. His application is granted. B. The trial At trial, the Government sought to prove that Stewart and Bacanovic conspired and acted to mislead the ImClone investigation in order to deflect attention from the fact that, on December 27, 2001, Stewart sold shares of ImClone from her personal account at Merrill Lynch & Co. (“Merrill Lynch”) after she learned from Bacanovic, her broker, that ImClone’s CEO, Samuel Waksal, was attempting to sell all of his own shares in the company. In connection with the investigation, Stewart was interviewed twice, on February 4, 2002 and April 10, 2002, by the Securities and Exchange Commission (“SEC”), the Federal Bureau of Investigation (“FBI”) and members of the United States Attorney’s Office for the Southern District of New York (the “U.S. Attorney”). Those agencies interviewed Bacanovic on January 7, 2002, and he testified before the SEC on February 13, 2002. At trial, the Government offered the testimony of SEC attorney Helene Glotzer and FBI agent Catherine Farmer, who attended each of the Defendants’ interviews, to inform the jury of what Stewart and Bacanovic said — and did not say— about Stewart’s ImClone investment, its liquidation, and the Defendants’ communications regarding those matters on and after December 27, 2001. In addition, the jury heard a tape recording of Bacanovic’s SEC testimony. To demonstrate that the story Defendants told to investigators was a cover-up of the events of December 27th, the Government called a number of witnesses to testify about their recollections of what happened that day and in the following months. Various portions of the testimony of those witnesses were corroborated by phone records, copies of emails and phone message logs. Among those who testified in the Government’s case-in-chief were Stewart’s assistant Ann Armstrong, Stewart’s friend Mariana Pasternak, Sam Waksal’s assistant Emily Perret, Bacanovic’s assistant Douglas Faneuil, who appeared pursuant to a cooperation agreement, and Merrill Lynch compliance personnel. Both the prosecution and the defense offered testimony from securities analysts on the volume and price movement of ImClone on and around December 27th. The jury heard opinion testimony regarding Bacanovic’s allegedly altered worksheet from the Defendant’s ink expert and from the Government’s ink expert, Lawrence F. Stewart, whose testimony later created a separate controversy (see Point II.A, infra). Bacanovic called one of his clients to testify about his character and expertise as well as certain trading practices and preferences. He also offered the testimony of Faneuil’s former attorney and Stewart’s business manager to rebut parts of Faneuil’s testimony. Stewart called one witness, an attorney who attended and took notes at the February 4th interview. The following story unfolded at trial. In the fall of 2001, Stewart was the CEO of Martha Stewart Living Omnimedia, Inc. (“MSLO”), and Bacanovic was a stock broker at Merrill Lynch. Among Bacanovic’s clients were Stewart, Samuel Waksal, who was then the CEO of ImClone, and Waksal’s daughter Aliza. At that time, ImClone had great expectations for its lead product, the cancer-treating drug Erbitux. The biotechnology company was anticipating that the. Food and Drug Administration (“FDA”) would approve its application for the drug by early 2002. With the prospect of commercialization on the horizon, Bristol-Myers Squibb made a tender offer to purchase ■ 20 percent of ImClone’s outstanding shares at a price of $70 per share and agreed to fund ImClone’s continued development of Erbitux while undertaking responsibility for sales and marketing following FDA approval. In October 2001, the MSLO pension fund held 51,800 shares of ImClone, apparently acquired over the course of the previous decade, and Stewart owned an additional 5,000 shares personally. All of the shares in the MSLO pension fund and those held by Stewart individually were tendered in response to Bristol-Myers’ offer, and all but 3,928 of the shares in Stewart’s personal account were sold. Stewart’s remaining ImClone stock represented approximately 10 percent of her total Merrill Lynch portfolio in November 2001. • 1. The events of December 27th, as told by Faneuil, Armstrong, Pasternak and Perret During the last week of December 2001 and the first week of January 2002, Bacanovic was vacationing in Florida. Douglas Faneuil, a Merrill Lynch client associate in his mid-twenties who had been working as Bacanovic’s assistant for about six months, was responsible for covering Bacanovic’s desk when he was away. Between 9:00 and 10:00 on the morning of December 27th, Faneuil received several phone calls on Bacanovic’s line from Sam Waksal’s daughters, Aliza Waksal and Elana Waksal Posner, and from Waksal’s accountant, Alan Goldberg. Prior to the opening of the market, Aliza Waksal placed a market order to sell all of her approximately 40,-000 ImClone shares, which Faneuil executed. Shortly thereafter, Faneuil received a call from Alan Goldberg directing him to sell all of Sam Waksal’s ImClone shares immediately. Faneuil advised Goldberg that he was unable to do so because of SEC rules restricting Waksal’s trading of his company’s shares. Goldberg informed Faneuil that, pursuant to facsimile instructions from Waksal that were dated December 26th (but not received at Merrill Lynch until December 27th), he was to transfer Waksal’s entire holding of approximately 80,000 ImClone shares to the account of his daughter Aliza and sell it from there. Faneuil confirmed — with both Bacanovic and Merrill Lynch compliance personnel — his understanding that the .proposed transaction was not permissible. Faneuil spoke with Goldberg five or six times by phone that day, and the transfer between accounts took place the following day, December 28th. Faneuil also received two calls that morning from Elana Waksal Posner regarding the sale of her ImClone shares; she expressed disappointment that the price was “already going down.” Faneuil kept Bacanovic apprised of the details of the calls from the Waksal family by telephone. In the midst of one of their conversations, Faneuil heard Bacanovic say suddenly, “Oh, my God, get Martha [Stewart] on the phone.” With Bacanovic on the line, Faneuil placed a call to Stewart’s New York office. Bacanovic left a message after being told by Stewart’s assistant, Ann Armstrong, that Stewart was traveling. Armstrong logged the message as follows: “Peter Bacanovic thinks ImClone is going to start trading downward.” In a follow-up call, Bacanovic instructed Faneuil “to tell [Stewart] what’s going on” when she returned the call. Faneuil recalled that Bacanovic expressly confirmed that Faneuil was to advise Stewart of Waksal’s efforts to sell his ImClone stock, a communication that Faneuil knew would violate Merrill Lynch’s client confidentiality policy. At 1:18 p.m. Bacanovie sent an email to Faneuil inquiring as to whether any news had “come out” regarding ImClone; Faneuil responded that there had been nothing yet. Shortly thereafter, Stewart — who was en route to Mexico for a vacation with her friend Mariana Pasternak — called her office and was informed by Armstrong of Bacanovic’s message. Armstrong transferred the call to Bacanovic’s office, where Faneuil answered, “Merrill Lynch, Peter Bacanovic’s office.” It is unclear whether Faneuil identified himself to Stewart. Faneuil told Stewart that, although there had been no news release from ImClone, Bacanovic thought she would “like to act on the information that Sam Waksal was trying to sell all of his shares,” at least those he held in Merrill Lynch accounts. Stewart asked Faneuil for a price quote and directed him to sell all of the ImClone shares that remained in her portfolio. Stewart then placed a call to Sam Waksal, reaching his secretary Emily Perret. Stewart asked Perret if she knew what was going on with ImClone and told Perret to find Waksal. Perret informed Stewart that Waksal was not in the office, and she noted the call on Waksal’s messages sheet for December 27, 2001 as follows: 1:43 Martha Stewart something is going on with ImClone and she wants to know what She is on her way to Mexico and she is staying at Los Vantanos [sic]. Back in New York, Stewart’s ImClone sell order was executed at an average price of $58.43 per share, yielding proceeds of approximately $230,000. Pursuant to Stewart’s instructions, Faneuil sent an email to her personal account confirming the trade. Faneuil also informed Baeanovic that, after hearing that Waksal was trying to sell all of his ImClone shares, Stewart sold her own shares. Several days later, while Stewart and Mariana Pasternak were visiting in Mexico, their discussion turned to the New Year’s plans of various friends, and Pasternak inquired about Sam Waksal. Among other things, Stewart told Pasternak about the decline in ImClone’s stock price, Waksal’s efforts to sell his holdings, and her own sale. Pasternak later testified that she was either told by Stewart or was left with the impression that it was “nice to have brokers who tell you those things,” and she acknowledged knowing that Bacanovie was Stewart’s broker. 2. The ImClone investigation and events after December 27th, as told by Faneuil, Armstrong, Glotzer, Farmer and Merrill Lynch compliance personnel a. the investigation begins On December 28, 2001, the day following Stewart’s ImClone sale, ImClone announced that the FDA had rejected its application for Erbitux approval. When the market next opened, on December 31, 2001, ImClone’s stock price had dropped approximately 18 percent to $45.39 per share. Prompted by these developments, Merrill Lynch compliance personnel reviewed ImClone trade data preceding the announcement. Upon discovery of the sales by the Waksals and Stewart — all clients of Bacanovie — the matter was referred to Merrill Lynch senior management, who directed further inquiry. Merrill Lynch compliance personnel contacted Faneuil and Bacanovie on December 31st with questions about the ImClone trades. Bacanovie, who was still out of town, told Merrill Lynch administrative manager Julia Monaghan that Faneuil handled the trades. He also said that Stewart’s sale was part of her planned year-end tax loss selling. Monaghan then sought out Faneuil. Immediately after speaking with Monaghan, Faneuil called Baeanovic to confirm the accuracy of an answer he had given to Monaghan. Bacanovic, as though coaching Faneuil, repeatedly stated that Stewart’s trade was made pursuant to a pre-existing plan for year-end tax loss selling to offset gains in other investments. Faneuil knew, however, that the timing of the ImClone sale and its gain to Stewart were inconsistent with a tax loss strategy. b. Faneuil’s January 3rd interview Based on the results of its internal review, Merrill Lynch referred the ImClone matter to the SEC. The SEC launched an investigation, as did the FBI and the U.S. Attorney. On January 3, 2002, the SEC interviewed Faneuil by phone, focusing the inquiry on the Waksal family’s trading on December 27th. With regard to Stewart’s trade, Faneuil explained only that Stewart had called, requested a quote and decided to sell. He then reported the substance of the SEC interview to Baeanovic, using a borrowed cell phone to avoid any possibility that the call would be preserved on a Merrill Lynch taped line. On the following Monday, Faneuil approached Merrill Lynch about retaining outside counsel for him. Soon after the January 3rd SEC interview, Faneuil received a call from Stewart’s business manager, Heidi DeLuca, complaining that the ImClone sale generated a gain that compromised Stewart’s tax loss selling plan and created a tax liability. Faneuil reported DeLuea’s call to Baeanovic. Baeanovic then gave Faneuil a different explanation for the trade, insisting that Stewart sold the ImClone stock on December 27th pursuant to a preexisting agreement to sell if the price dropped to $60 per share, although no such order had been entered into Merrill Lynch’s computer system. Called as a defense witness at trial, DeLuca confirmed the existence of that stop-loss order. She asserted, however, that the conversation with Faneuil regarding the ImClone gain took place in February, rather than early January as Faneuil had recalled. c. Bacanovic’s January 7th interview Upon returning to the office from vacation on January 7th, Baeanovic was questioned again by Merrill Lynch’s Monaghan about Stewart’s trade. Baeanovic told her that earlier in December, while he and Stewart were reviewing Stewart’s portfolio and tax loss strategy, they decided to sell ImClone if the price dropped to or below $60 per share. He recounted the $60 per share stop-loss order story to the SEC in a telephone interview later that day, explaining that on December 27th he advised Stewart that ImClone had dropped below $60, and she told him to sell it. After speaking to the SEC, Baeanovic took Faneuil out for coffee and a talk. Baeanovic explained Stewart’s integral role in advancing his career and stressed his loyalty to her. Faneuil brought up the events of December 27th and reminded Baeanovic that he knew what really transpired, at which point Baeanovic asserted that Faneuil did not know what was going on that day and admonished Faneuil for being selfish. When Faneuil returned from a week’s vacation in mid-January, Baeanovic told him that he had met recently with Stewart and discussed the events of December 27th with her. Stewart’s calendar, which Armstrong maintained, reflected a breakfast meeting with Baeanovic on January 16th. According to Faneuil, Baeanovic said to him, “Everyone’s telling the same story. This was a $60 stop-loss order. That was the reason for her sale. We’re all on the same page, and it’s the truth. It’s the true story. Everyone’s telling the same story.” d. Stewart’s February 4th interview On or around January 22, 2002, Stewart consulted with counsel from Wachtell, Lipton, Rosen & Katz, whose records reflect that work on “MS/ImClone matters” would be undertaken. Several days thereafter, Stewart’s attorneys were contacted by the offices of the U.S. Attorney and the FBI, who asked to speak with her. Over the next week, Stewart met with and spoke by phone to her attorneys several times. At the end of one such call on January 31st, Stewart asked Armstrong to send to the law firm copies of messages that she had received during the period from December 26, 2001 through January 7, 2002. Stewart then asked Armstrong to show her the messages, including the entry for the December 27th message from Bacanovic. Upon reading the message, Stewart took the computer mouse from Armstrong and deleted and typed over a portion of the text so that what initially read, “Peter Bacanovic thinks Imclone is going to start trading downward” was revised to read, “Peter Bacanovic re imclone [sic].” Immediately thereafter, Stewart told Armstrong to restore the message to the original, and Armstrong did so. On February 4, 2002, in response to the SEC’s request for an interview, Stewart met at the offices of the U.S. Attorney with two SEC enforcement attorneys, an Assistant United States Attorney and an FBI agent, all of whom were investigating the December 27th ImClone trading. Stewart told the investigators that in the fall of 2001, shortly after selling a portion of her ImClone stock to Bristol-Myers, she decided with Bacanovic to sell the remainder if the price fell to $60 per share. Stewart recounted receiving a message to call Bacanovic while she was en route to Mexico. Stewart said that she called Bacanovic, who advised her that ImClone shares were trading below $60, and directed him to sell all of her shares. She explained to the investigators that she wanted to take care of the matter at that time rather than be bothered during her vacation. She stated that she spoke with Bacanovic on December 27th, and she denied speaking with his assistant. Stewart added that during the call she and Bacanovic also discussed her company’s stock as well as K-Mart. Although Stewart had reviewed the message log reflecting the call from Bacanovic only four days earlier at Armstrong’s desk, Stewart denied in the interview that she knew whether there was a written record of Bacanovic’s message but agreed to check into the matter. Stewart also denied that she had discussed ImClone with Bacanovic during the week leading up to December 27th and said that her several discussions with him since that time had been limited to matters in the “public arena.” Although Stewart told investigators that Bacanovic had informed her that the SEC was questioning Merrill Lynch about the December 27th trading, Stewart also said that Bacanovic did not tell her whether he had been questioned or whether any questions involved her. Stewart said nothing at the interview about being aware of the Waksals’ intentions to sell their ImClone shares on December 27th. e. Bacanovic’s February 13th testimony Bacanovic gave sworn testimony to the SEC on February 13, 2002, responding to questions about ImClone trading in the Waksal family accounts that he managed and about Stewart’s holdings, including ImClone and her decision to sell on December 27th. He denied telling Stewart on December 27th of Waksal’s efforts to sell his ImClone stock and stated that he would never discuss one client’s transactions with another. Describing the events of December 27th, Bacanovic told investigators that Faneuil’s phone calls to him regarding the Waksal family prompted him to remember Stewart’s decision to sell her ImClone shares if the price dropped to $60 per share. Bacanovic commented that Stewart never thought that would happen. Bacanovic testified that Stewart made up her mind to sell the declining ImClone shares, which he believed she held out of loyalty to Waksal, at $60 per share during a “comprehensive portfolio review” with him on December 20th. He referred to a contemporaneous worksheet, which was later produced to the SEC, reflecting that and other decisions. Bacanovic explained that no order was entered into Merrill Lynch’s computer system to trigger the sale of ImClone because Stewart, like most of his clients, eschewed automatic execution in favor of having him track a stock and give notice if and when it reached the target price. Bacanovic told investigators that on December 27th he left a message with Stewart’s assistant, advising her of ImClone’s price and asking that Stewart “[c]all my office.” He stated that Faneuil later reported to him that Stewart called Bacanovic’s line on the 27th and directed him to sell her shares. Bacanovic denied speaking with Stewart on that day. He also represented that in conversations since December 27th he and Stewart had discussed ImClone in general terms and that he had informed her of an internal Merrill Lynch review. He denied speaking with Stewart about her own ImClone trades, the government investigation, or the fact that he had been questioned about the events of December 27th. f. Faneuil’s March 7th interview On March 7, 2002, several weeks after Bacanovic’s SEC testimony, Faneuil was interviewed by representatives from the SEC, the FBI and the U.S. Attorney’s Office. He stated, as he had previously, that on December 27th, Stewart called for a quote and decided to sell. He did not mention to the investigators that during the call he informed Stewart of Waksal’s efforts to sell, nor did he say that Bacanovic had told him to do so. When Faneuil reported this to Bacanovic, Bacanovic replied, “good.” g. Stewart’s April 10th interview After receiving a copy of Sam Waksal’s phone log, which reflected a call from Stewart on the morning of December 27th, investigators requested another meeting with Stewart, and she agreed to speak with them. During that April 10, 2002 interview, Stewart stated that she had no recollection of having been told on December 27th that any of the Waksals were selling their ImClone stock. Stewart was asked about Bacanovic’s December 27th phone message, which Armstrong had entered in the log as “Peter Bacanovic thinks ImClone is going to start trading downward.” Stewart stated that she did not recall that Armstrong told her about the content of Bacanovic’s message. Rather she recalled being told that Bacanovic called and wanted to speak with her before the end of the day. On April 10th, the investigators also questioned Stewart about the message 'she left with Sam Waksal’s secretary on the morning of December 27th, asking what was “going on with ImClone.” Stewart told investigators that she called Waksal on the 27th for the purpose of seeing how he was and making sure everything was okay. She also stated that when she was interviewed two months earlier on February 4th, she did not recall having made the call to Waksal. h. Faneuil’s decision to contact the government During the period between February and May 2002, Bacanovic talked to Faneuil about the investigation approximately five times, each time reiterating to Faneuil that he had spoken with Stewart and that everyone was “on the same page” and telling the same $60 stop-loss story, which was the “truth.” During one such conversation in April or May, Faneuil reminded Bacanovic that it was Faneuil who spoke with Stewart on December 27th and that he knew what actually had been said. At that point, according to Faneuil, Bacanovic said, “don’t even say that, just don’t even say that.” Faneuil admitted at trial, however, that Bacanovic never explicitly told him to lie. A month or two later, in June 2002, although he had not been served with a subpoena, Faneuil admitted to Merrill Lynch and to the government investigators that he had lied twice to the SEC about the content of his December 27th phone conversation with Stewart. Faneuil testified at trial that the lies and subsequent cover-up became too much to bear. Faneuil entered into a cooperation agreement with the Government, pleading guilty to the misdemeanor charge of receiving money or things of value as a consideration for not informing against a violation of the law in violation of 18 U.S.C. § 873. He agreed with the SEC to a lifetime exclusion from work in the securities industry. 3. Stewart’s June 2002 public statements In June 2002, media reports stated that a congressional investigation into the FDA’s denial of the Erbitux application had revealed the December 27th ImClone transactions by Waksal and Stewart. Thereafter, the value of MSLO shares declined, which resulted in a corresponding decrease in Stewart’s net worth. Stewart issued two public statements, one in a press release and one addressed to a conference of securities analysts and advisors. Stewart explained that her sale had been triggered by the pre-existing decision to sell ImClone if and when it reached $60 per share and not by information that was unavailable to the public. She also represented that she had cooperated fully with government investigators. MSLO shares enjoyed-a modest rebound. C. Judgment of acquittal on Count Nine Following the close of evidence and before summations, the District Court granted Stewart’s motion for judgment of acquittal, pursuant to Fed.R.Crim.P. 29, on Count Nine, which charged Stewart with defrauding MSLO investors by making false public statements in June 2002 (see Point B.3, supra) for the purpose of deceiving investors and thwarting the decline in the value of her own MSLO stock. See United States v. Stewart, 305 F.Supp.2d 368 (S.D.N.Y.2004). The District Court found that the evidence was insufficient to establish that Stewart intended to defraud investors when she issued the statements, holding that “a reasonable juror could not, without resorting to speculation and surmise, find beyond a reasonable doubt that Stewart’s purpose was to influence the market in MSLO securities.” Id. at 376. D. The verdict The jury began deliberating on March 3, 2004. The District Court provided the jurors with (i) a redacted version of the Superseding Indictment, identifying the charged acts and omissions as well as the statutory allegations and (ii) a verdict form listing each specification in the false statement and perjury counts with instructions that for any count of conviction a check mark be placed next to any specification found. On the third day of deliberations, March 5th, the jury returned a verdict acquitting Defendants of certain charges and finding them guilty on others. The District Court summarized the jury’s specific findings as follows: The jury convicted Stewart of making false statements to investigators during her February 4 interview, in violation of 18 § U.S.C. 1001. The jury found Stewart guilty of making the following false statements, each of which was a specification in Count Three of the Indictment. Stewart told the Government investigators that she spoke to Bacanovic on December 27 and instructed him to sell her ImClone shares after he informed her that ImClone was trading below $60 per share. Stewart also stated that during the same telephone call, she and Bacanovic discussed the performance of the stock of her own company, Martha Stewart Living Omnimedia (“MSLO”), and discussed K-Mart. She told investigators that she had decided to sell her ImClone shares at that time because she did not want to be bothered during her vacation. Stewart stated that she did not know if there was any record of a telephone message left by Bacanovic on December 27 in her assistant’s message log. She also said that since December 28, she had only spoken with Bacanovic once regarding ImClone, and they had only discussed matters in the public arena. Finally, Stewart told investigators that since December 28, Bacanovic had told her that Merrill Lynch had been questioned by the SEC regarding ImClone, but that he did not tell her that he had been questioned by the SEC or that he had been questioned about her account. The jury acquitted Stewart of one specification charged in Count Three: her statement that she and Bacanovic had agreed, at a time when ImClone was trading at $74 per share, that she would sell her shares when ImClone started trading at $60 per share. The jury found Stewart guilty of making the following false statements to investigators during her April 10 interview. Each of these statements was a specification in Count Four of the Indictment. Stewart said that she did not recall if she and Bacanovic had spoken about Waksal on December 27 and that she did not recall being informed that any of the Waksals were selling their ImClone stock. Stewart also reiterated that she spoke to Bacanovic on December 27, that he told her the price of ImClone shares, and that he suggested that she sell her holdings. The jury did not find Stewart guilty of one false statement specification charged in Count Four: her statement that sometime in November or December of 2001, after she sold ImClone shares held in the Martha Stewart Defined Pension Trust, she and .Bacanovic decided she would sell her remaining ImClone shares when they started trading at $60 per share. The jury found Bacanovic guilty of making one false statement during his January 7 interview with the SEC, in violation of 18 U.S.C. § 1001. This was a specification in Count Two of the Indictment, which charged Bacanovic with falsely stating that he had spoken to Stewart on December 27, that he told Stewart during that conversation that ImClone’s share price had dropped, and that Stewart had instructed him to sell her shares. The jury found Bacanovic not guilty of the other false statement charged in Count Two: his statement that on December 20, 2001, he had a conversation with Stewart in which she decided to sell her ImClone stock at $60 per share. The jury also convicted Bacanovic of perjury in violation of 18 U.S.C. § 1621, for one statement he made during his February 13 testimony before the SEC. Perjury was the charge in Count Six of the Indictment. Bacanovic stated that on the morning of December 27, he had left a message for Stewart with her assistant, Ann Armstrong. He said that the message requested that Stewart return his call, and advised her of the price at which ImClone was then trading. The jury acquitted Bacanovic of five other perjury specifications charged in Count Six. These specifications related to conversations Bacanovic had had with Stewart subsequent to her December 27 trade, the circumstances of her decision on December 20 to sell ImClone at $60 per share, and a worksheet he had used during their December 20 conversation. The jury acquitted Bacanovic of a charge of making and using a false document, which was charged as a violation of 18 U.S.C. § 1001 in Count Five of the Indictment. This count was based on a worksheet that Bacanovic gave the SEC in the course of their investigation. Bacanovic claimed that he had used the worksheet during his December 20 conversation with Stewart. The worksheet listed Stewart’s holdings and contained numerous handwritten notations in blue ink. The bullet point before ImClone’s entry on the worksheet was circled in blue ink, as were the bullet points preceding several other entries on the page. Beside ImClone’s name was a notation, “@60,” also in blue ink.. The “@60” notation was the basis of the charge. The jury also convicted defendants of conspiracy [in violation of 18 U.S.C. § 371] and obstruction of an agency proceeding in violation of 18 U.S.C. § 1505. With respect to the conspiracy charge, the jury found that the defendants conspired to carry out all three objects of the conspiracy: making false statements, perjury, and obstruction of an agency proceeding. United, States v. Stewart, 323 F.Supp.2d 606, 609-10 (S.D.N.Y.2004) (footnote identifying appendices omitted). We agree with the District Court’s overview of the jury’s findings: [F]irst, that the jury found that the Government had not proved, beyond a reasonable doubt that defendants had fabricated the $60 agreement; and second, that the jury found beyond a reasonable doubt that Stewart and Bacanovic agreed to lie and did lie to Government investigators to conceal the fact that when Stewart sold her ImClone stock on December 27, 2001, she had been tipped by Bacanovic’s assistant that the CEO of ImClone was trying to sell his ImClone shares held at Merrill Lynch. Id. at 614. DISCUSSION Stewart and Bacanovic both argue that we must reverse their convictions, order a new trial, or remand for an evidentiary hearing because the trial was tainted by Sixth Amendment violations, prosecutorial misconduct, juror misconduct, extraneous influences on the jury, and erroneous evidentiary rulings and jury instructions. Bacanovic also advances additional arguments pertaining solely to his conviction. None of Defendants’ appellate arguments persuades us to grant the requested relief. L Confrontation Clause The Government called SEC enforcement attorney Helene Glotzer and FBI agent Catherine Farmer to introduce the statements that Stewart made to investigators in interviews on February 4th and April 10th and the statements that Bacanovie made in the January 7th interview. The jury heard the tape recording of Baeanovic’s February 13th testimony answering questions about Stewart, her ImClone trade and their communications regarding the trade and the investigation. Each Defendant now complains that admitting into evidence certain portions of those statements for the truth of the matters asserted by one of them to prove facts used to convict the other violated their respective rights under the Confrontation Clause as articulated by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Those errors; they assert, mandate reversal of the judgments of conviction. Crawford, which was issued just days after the verdict in this case, announced a per se bar on the admission of a class of out-of-court statements, denominated “testimonial,” against an accused who had no prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354. While declining to “spell out a comprehensive definition of ‘testimonial,’ ” id. at 68, 124 S.Ct. 1354, the Supreme Court identified certain examples at the “core” of the definition, id. at 51-52, 124 S.Ct. 1354. “[T]he types of statements cited by the Court as testimonial' share certain characteristics; all involve a declarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings.” United States v. Saget, 377 F.3d. 223, 228 (2d Cir.2004). Stewart contends that Bacanovic’s statements in interviews conducted by representatives of the SEC, U.S. Attorney’s Office, and FBI, as well as his taped sworn testimony before the SEC, are the type of statements that Crawford bars in the absence of an opportunity for cross-examination. Bacanovic asserts the same argument with respect to statements made by Stewart during the course of the February 4th and April 10th interviews. Defendants further contend that there is no ground on which to except the challenged statements from this requirement because they are “testimonial” under Crawford and because the statements of each of them were offered for the truth of the matter asserted as probative of the other’s guilt. Neither Defendant objected at trial to admission of these challenged statements. Accordingly, we review their Sixth Amendment Crawford claims for plain error. See United States v. Bruno, 383 F.3d 65, 78 (2d Cir.2004). We find none. A. Standard of review Unpreserved Confrontation Clause claims are reviewed for plain error. Id. Under Fed.R.Crim.P. 52(b), an error that was not raised at trial may not be considered unless it is (1) an “error,” meaning an unwaived deviation from a legal rule, that is (2) “plain,” which means clear and obvious under the law at the time of appellate review, and (3) “affect[s] substantial rights” by influencing the outcome of the trial. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks omitted; alteration in original); United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted). Even if such an error is noted, the discretion to correct it under Rule 52(b) is to be exercised only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (internal quotation marks omitted; alteration in original); Olano, 507 U.S. at 735-37, 113 S.Ct. 1770. B. Analysis 1. The District Court did not err in admitting the challenged statements Turning to the first prong of plain error analysis, we find that there was no error in the admission of each of these co-defendant’s statements against the other. Although the statements at issue, having been made during interviews with government officials in the course of an investigation, do have characteristics of Crawford’s “core class of ‘testimonial’ statements,” Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354; Saget, 377 F.3d at 229, in the context of the crimes for which Defendants were convicted, the challenged statements are part and parcel of co-conspirators’ statements made in the course of and in furtherance of Defendants’ conspiratorial plan to mislead investigators. See Fed. R.Evid. 801(d)(2)(E). But for the fact that they were made in response to inquiries by government agents during formal investigations and thus may have an aura of “testimony,” there is no question that the contents of all such statements of one member of the conspiracy would be admissible against other members. See Crawford, 541 U.S. at 56, 124 S.Ct. 1354. To admit a statement as nonhearsay under Rule 801(d)(2)(E), there must be a preponderance of evidence independent of the proffered statements demonstrating that there was a conspiracy, that the declarant and the person against whom the statement is offered belonged to the conspiracy, and that the statements were made during the course of and in furtherance of the conspiracy. See, e.g., United States v. Alameh, 341 F.3d 167, 176-77 (2d Cir. 2003). Without considering the contents of the statements themselves, the record here contains ample evidence of a conspiracy among Stewart, Bacanovie and Faneuil to cover up what they said and did on and after December 27th by responding to inquiries instead of asserting their Fifth Amendment rights not to incriminate themselves, for example, and by giving false and misleading responses to certain of the investigators’ questions while shrouding those responses with an aura of accurate detail. Here, Defendants do not have the temerity to argue that somehow Crawford precludes the government’s proof of the Defendants’ false portions of their statements because they were provided in a testimonial setting. Crawford expressly confirmed that the categorical exclusion of out-of-court statements that were not subject to contemporaneous cross-examination does not extend to evidence offered for purposes other than to establish the truth of the matter asserted. See Crawford, 541 U.S. at 58-59, 124 S.Ct. 1354 & n. 9 (“The [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”) (citing Tennessee v. Street, 471 U.S. 409, 414,105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)); see also United States v. Logan, 419 F.3d 172, 177-78 (2d Cir.2005) (same). Defendants object that certain truthful portions of their statements made during the course of the agreed-upon obstruction must be excluded because they are “testimonial.” On the facts of this case, where the object of the conspiracy is to obstruct an investigation that is engaged in obtaining those testimonial statements of the conspirators, that objection must fail. Understanding the reasons for that conclusion requires further consideration of Crawford. Crawford set forth two propositions that are clear when considered separately but problematic when they arise in the same case. First, the Supreme Court stated that statements in furtherance of a conspiracy were generally not testimonial and were exceptions to the hearsay rule that encountered no Confrontation Clause obstacle. See Crawford, 491 U.S. at 56, 109 S.Ct. 2273. Second, the Court stated that out-of-court testimonial statements, if not subjected to cross-examination, did encounter a Confrontation Clause obstacle. See id. at 50-56, 109 S.Ct. 2273. Crawford had no occasion to consider the situation we face: statements that are both in furtherance of a conspiracy and testimonial. We need not attempt to resolve broadly the tension between the “in furtherance” rule allowing uncross-examined statements and the “testimonial” rule prohibiting them because in the pending case that tension arises in a special context, and the context itself points toward a resolution of the tension. Here the truthful portions of the testimonial statements were made in furtheranee of a conspiracy to obstruct justice. The essence of such a conspiracy necessarily contemplates that the conspirators would provide false information to government agencies during the course of their investigation and during interrogations that would produce testimonial statements of one or the other of them. It defies logic, human experience and even imagination to believe that a conspirator bent on impeding an investigation by providing false information to investigators would lace the totality of that presentation with falsehoods on every subject of inquiry. To do so would be to alert the investigators immediately that the conspirator is not to be believed, and the effort to obstruct would fail from the outset. As noted, the admissibility of such totally false statements, made in the course and in furtherance of the conspiracy, suffers no Sixth Amendment bar under Crawford. The truthful portions of statements in furtherance of the conspiracy, albeit spoken in a testimonial setting, are intended to make the false portions believable and the obstruction effective. Thus, the truthful portions are offered, not for the narrow purpose of proving merely the truth of those portions, but for the far more significant purpose of showing each conspirator’s attempt to lend credence to the entire testimonial presentation and thereby obstruct justice. It would be unacceptably ironic to permit the truthfulness of a portion of a testimonial presentation to provide a basis for keeping from a jury a conspirator’s attempt to use that truthful portion to obstruct law enforcement officers in their effort to learn the complete truth. Statements of co-conspirators are admissible on an agency theory. See, e.g., United States v. Russo, 302 F.3d 37, 45 (2d Cir.2002). We have explained that “[w]hen two persons engage jointly in a partnership for some criminal objective, the law deems them agents for one another. Each is deemed to have authorized the acts and declarations of the other undertaken to carry out their joint objective.” Id. (citing Anderson v. United States, 417 U.S. 211, 218 n. 6, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) (“The rationale for both the hearsay-conspiracy exception and its limitations is the notion that conspirators are partners in crime. As such, the law deems them agents of one another.”)). It follows then that having formed their conspiracy to obstruct the ImClone investigation, Stewart and Bacanovic, each having full authority as an agent to speak for the other on matters within the purview of the conspiracy, answered questions on each other’s behalf during the questioning by the Government’s investigators and attorneys. The testimony by one, therefore, was as a matter of law the authorized statement of the other. For these reasons, we hold that when the object of a conspiracy is to obstruct justice, mislead law enforcement officers, or commit similar offenses by making false statements to investigating officers, truthful statements made to such officers designed to lend credence to the false statements and hence advance the conspiracy are not rendered inadmissible by the Confrontation Clause. A contrary reading of the rule would result in obvious and unacceptable impediments to prosecuting cases like this one, in which the very object of the charged conspiracy is for the defendants to mislead investigators by responding falsely to the investigators’ questions in a structured setting, fully aware that their responses might be used in future judicial proceedings. For these reasons, there was no error here in admitting the testimonial statements of one Defendant against the other. 2. Admitting the challenged statements did not affect substantial rights Even assuming the first two elements of plain error, moreover, we could not conclude that Defendants’ substantial rights were adversely affected by admitting the challenged statements. An evaluation of the relevant factors — which include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case” — indicates that any Confrontation Clause error, although we do not perceive one, was harmless. Delaware v. Van Arsdall, 475 U.S. 678, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The majority of the challenged statements concern the conduct of which both Defendants were acquitted, i.e., the charges that Stewart and Bacanovic lied about having reached an agreement prior to December 27th whereby Stewart’s ImClone shares would be sold if and when the per share price dropped to $60. Defendants do not demonstrate that they were prejudiced by the admission of evidence relating primarily to offenses on which the Government failed to carry its burden of proof. See United States v. Taylor, 92 F.3d 1313, 1332 (2d Cir.1996) (any error in admitting evidence primarily related to charge on which defendant was acquitted does not affect substantial rights and therefore is disregarded under Rule 52(b)). The counts of conviction were those relating to (i) Stewart’s having been informed about Waksal’s efforts to sell his ImClone holdings just prior to selling her own shares in the company; (ii) the message for -Stewart that Bacanovic left with Ann Armstrong on December 27th, and (iii) the Defendants’ communications thereafter about the investigation and the underlying events. Ample evidence, independent of the challenged statements, supports the jury’s verdict on these counts. With respect to the counts that were based on the Defendants’ communications on December 27th, the jury heard from Faneuil, whose credibility was exhaustively probed, that at Bacanovic’s direction he informed Stewart about Waksal’s efforts to sell his ImClone holdings and that Bacanovic later pressured him to cover up that fact when speaking to investigators, stressing to Faneuil that he and Stewart were “on the same page” and telling the “same story.” Faneuil also testified that he retained counsel because he had lied to the SEC. Faneuil told the jury that he used a colleague’s cell phone when calling Bacanovic to discuss the trades or the investigation in order to avoid Merrill Lynch taped lines; that testimony was corroborated by the phone records. In addition, phone records demonstrated that Bacanovic left a message for Stewart within minutes of learning from Faneuil of Waksal’s intent to sell. Stewart’s assistant Ann Armstrong testified that the message was “Peter Bacanovic thinks ImClone is going to start trading downward.” Phone records and the testimony of Waksal’s assistant, Emily Perret, demonstrated that after calling Bacanovic’s office in response to his message, Stewart called Waksal to learn what was going on with ImClone and insisted on speaking with him. The jury heard Armstrong describe Stewart’s temporary alteration of the phone log entry memorializing Baeanovie’s December 27th message. The jury listened to Stewart’s friend Mariana Pasternak recount Stewart’s remark that she was provided with the information about Waksal’s sale. As to the convictions on the counts that were based on Defendants’ misrepresentations about their communications with each other concerning the investigation, evidence indicated that Bacanovic sought a meeting alone with Stewart that in fact took place. Faneuil stated that Bacanovic told him, shortly after that meeting, that he communicated with Stewart about the investigation and was assured that everyone was “on the same page.” On this record, there is also no basis to conclude that admitting the challenged statements, “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544. In sum, we decline to reverse the judgments of conviction based on the argument that they were secured through testimony that violated Defendants’ Sixth Amendment rights. II. The interests of justice Defendants challenge the District Court’s denial of three separate motions for a new trial that were based on allegations of (i) false testimony by the Government’s ink expert, (ii) juror bias, and (iii) extraneous influences on the jury. A district court may vacate a judgment of conviction and grant a new trial “if the interest of justice so requires.” Fed.R.Crim.P. 33. We review the District Court’s decision to deny Defendants’ Rule 33 motions for abuse of discretion, upholding findings of fact that were made in the course of deciding the motions unless they are clearly erroneous. See, e.g., United States v. Wong, 78 F.3d 73, 78-79 (2d Cir.1996). A. Government expert’s perjury 1. Lawrence Stewart’s testimony Defendants each seek a new trial or, in the alternative, an evidentiary hearing, based on alleged prejudice arising from the introduction of false testimony given by the Government’s expert witness. During its case in chief, the Government called Lawrence F. Stewart, a civilian employee of the United States Secret Service and its Laboratory Director and Chief Forensic Scientist, to give an expert opinion regarding the worksheet that Bacanovic described in his testimony before the SEC as having been prepared on December 20th when he and Stewart reviewed her portfolio. The worksheet is a one-page document that listed each stock in Stewart’s personal Merrill Lynch account and identified the market price as well as its unrealized gain or loss in position. Various handwritten notations, including circles, checks, and stock symbols appear on the page. In addition, to the right of the entry describing ImClone was the notation “@60.” Bacanovic testified on February 13, 2002, that the document demonstrated that Stewart sold her stock on December 27th pursuant to an earlier decision to liquidate if the per share price dropped to $60. The original worksheet was sent to the Secret Service Forensic Services Division (“FSD”) where the ink that produced the handwritten notations was analyzed. At trial, Lawrence described himself as the only “national expert for ink.” He testified that laboratory tests were performed — first in July and August 2002, and again in January 2004 — to determine whether the ink used in the “@60” notation was consistent with the ink in other notations on the page. Lawrence testified that the test results led him to conclude that the ink used to make the “@60” notation, which appeared next to the ImClone entry, differed from the ink used to make the other notations that he was able to test, all of which had been made with a type of Paper Mate pen. The Government offered Lawrence’s testimony to demonstrate that the “@60” notation was not contemporaneous with the other notations on the page and therefore tended to prove that Baeanovic altered the document and that he and Stewart concocted the “@60” stop-loss order story after the fact when the flaws in the tax loss story came to light. The defense offered the testimony of Dr. Albert Lyter, a forensic chemist specializing in the analysis of inks and papers. There was little disagreement in the two experts’ conclusions. Both testified that it was likely that the marks other than the “@60” and a small dash at the end of the Apple Computer entry had been produced by a Paper Mate pen, that the ink used to make the “@60” mark was unusual and from an unidentifiable source, and that the timing of the various marks could not be determined reliably through testing. Lyter’s conclusion, however, departed from Lawrence’s in two respects. First, Lyter concluded that the “@60” notation and the Apple Computer dash had been made by the same pen, whereas Lawrence concluded that the “@60” ink differed from the ink used for other notations on the page but, because he had not tested the dash, he had made no conclusion regarding its source. Second, Lyter testified that use of a device known as a densitometer revealed batch variations, which indicated that at least two different ball point pens had been used to make the remaining notations on the page. The Government recalled Lawrence to answer questions about the use of densitometry. He testified that the densitometer was not sufficiently accurate to ascertain variations among different batches of the same ink recipe with reasonable reliability. Several months after the jury returned its verdict, the Government announced that an investigation had revealed that Lawrence had made false material statements in the testimony he gave in Stewart’s and Bacanovic’s trial. He was indicted on June 9, 2004 on two counts of perjury in violation of 18 U.S.C. § 1623 relating to his testimony that he had personally participated in the forensic tests about which he testified and that he was familiar with a book proposal drafted by his colleagues, and knew that it included a chapter on densitometry. Defendants contend that, in light of the perjury charges, reversal of their convictions should be “virtually automatic” because the Government knew or should have known at the time of trial that Lawrence’s testimony was false. They argue alternatively that the District Court erred in failing to hold an evidentiary hearing on the issue of the Government’s knowledge. We disagree. 2. Standard of review We have frequently acknowledged that, even where newly discovered evidence indicates perjury, motions for new trials “should be granted only with great caution and in the most extraordinary circumstances.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992); accord United States v. Spencer, 4 F.3d 115, 118 (2d Cir.1993); United States v. DiPaolo, 835 F.2d 46, 49 (2d Cir.1987); United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975); United States v. Costello, 255 F.2d 876, 879 (2d Cir.1958). So cautioned, the trial court’s discretion to decide whether newly discovered evidence warrants a new trial is broad because its vantage point as to the determinative factor— whether newly discovered evidence would have influenced the jury — has been informed by the trial over which it presided. See United States v. Gambino, 59 F.3d 353, 364 (2d Cir.1995) (recognizing that the trial court’s Rule 33 “ruling is deferred to on appeal because, having presided over the trial, it is in a better position to decide what effect the newly discovered materials might have had on the jury”). 3. Analysis a. falsity “[WJhen the newly discovered evidence focuses on the perjury of a witness, a threshold inquiry is whether the evidence demonstrates that the witness in fact committed perjury.” United States v. White, 972 F.2d 16, 20 (2d Cir.1992). When the District Court denied Defendants’ requests for a new trial, it assumed that Lawrence perjured himself. Stewart, 323 F.Supp.2d at 615. At the time, Lawrence had been indicted on perjury charges arising from his testimony in this matter, but had not been convicted. Id. We will make the same assumption for purposes of this appeal, noting that the propriety of that approach is not altered by Lawrence’s subsequent acquittal, which does not establish that Lawrence’s trial testimony was true, but only that the Government did not prove beyond a reasonable doubt that his testimony was false. b. the Government’s awareness Perjury in and of itself is insufficient to justify relief under Rule 33. White, 972 F.2d at 22 (“the mere fact that [the witness] lied on the witness stand does not automatically entitle [defendant] to a new trial”). Rather, when a trial has been tainted by false testimony, this Court is “called upon to strike a fair balance between the need for both integrity and finality in criminal prosecutions” by determining whether false testimony was prejudicial in the sense that it affected the outcome of the trial. Stofsky, 527 F.2d at 239. To do so, we assess the materiality of the perjury to the verdict and are guided by two standards which are based on the extent of the government