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United States v. McChesney

United States Court of Appeals, Ninth Circuit

September 11, 2017

United States of America, Plaintiff-Appellee,
Benjamin Quinn McChesney, Defendant-Appellant.

          Argued and Submitted June 8, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Montana No. 1:12-cr-00066-SPW-1, Wm. Fremming Nielsen, Senior District Judge, Presiding

          Daniel O. C. Ball (argued), Hendrickson Law Firm P.C., Billings, Montana, for Defendant-Appellant.

          Leif Johnson (argued), Acting United States Attorney, United States Attorney's Office, Billings, Montana, for Plaintiff-Appellee.

          Before: M. Margaret McKeown, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.

         SUMMARY [*]

         Criminal Law

         The panel affirmed the district court's denial, after an evidentiary hearing on remand, of the defendant's motion for a new trial on the basis of improper contact with the jury.

         The defendant asserted that his ex-girlfriend had made derogatory comments about him to the jurors at his trial. The panel held that the district court did not clearly err in finding that there was no credible evidence that the ex-girlfriend ever made statements to a juror, and substantial evidence supported the district court's determination regarding the credibility of witnesses who testified at the evidentiary hearing.

         The panel held that the district court did not abuse its discretion by refusing to recall the jury for live questioning, by preventing the defendant from contacting the jurors himself, or by relying on a court-drafted questionnaire that was sent to each juror. The district court also did not abuse its discretion by refusing to recuse itself for bias or a lack of impartiality, and there was no denial of due process in the defendant's exclusion from pre-hearing telephonic conferences.

         The panel held that the defendant forfeited the right to challenge the destruction of courthouse surveillance videos that could have supported his allegations of improper juror contact because he did not raise this issue in his briefing in his first appeal. Even without forfeiture, this claim failed because the defendant did not show bad faith.


          McKEOWN, Circuit Judge:

         We are faced with a peculiar case of "he said, she said." After Benjamin McChesney was convicted of orchestrating a massive gun heist, he claimed his ex-girlfriend had said nasty things about him to the jurors at his trial. None of the jurors reported this improper contact, nor did the court security officers who would have apparently been within earshot. The district court did not buy McChesney's story and denied his motion for a new trial. After a different panel of our court remanded to the district court to dig a little deeper with an evidentiary hearing, the court denied McChesney's motion for a second time, this time finding "no credible evidence" that jurors heard any derogatory comments. In his second appeal, McChesney again appeals the denial of his motion for a new trial. We affirm the district court's denial of that motion. McChesney did not carry his burden to offer any credible evidence to establish outside contact with a juror.


         A jury convicted McChesney on charges of theft and possession of stolen firearms. He promptly moved for a new trial and claimed that the jurors had overheard his ex-girlfriend, Krista McFarren, make derogatory comments about his "criminal past, bad character, and his willingness to do anything for money." United States v. McChesney, 613 F.App'x 556, 560 (9th Cir. 2015). Due to these stray remarks, McChesney demanded a do-over.

         To support his motion for a new trial, McChesney submitted an affidavit from his co-defendant's mother, Julie Lennick. Lennick swore she heard McFarren's "loud" outburst in front of "[a]t least three jurors" as she was turning in her visitor badge in the courthouse lobby. Perhaps sensing that the word of his co-defendant's mother might be taken with a pinch of salt, McChesney also filed a request for courthouse surveillance videos that he said might have captured McFarren's diatribe on film. The district court denied the motion for a new trial and never ruled on the request for the videos.

         Not quite satisfied with the procedures in the district court, we vacated the judgment and remanded for an evidentiary hearing. Although we acknowledged that "[t]here may well be good reasons to doubt [Lennick's] credibility, " we concluded that the district court "should have held an evidentiary hearing to determine whether the alleged statements were made, and if so, whether they were heard by jurors and there is a reasonable possibility they affected the verdicts." Id. at 561.

          On remand, the district court held three telephonic conferences in the run-up to the evidentiary hearing. McChesney was not on the line for any of these calls, but his counsel was. The first two were brief and mundane. During a call in June 2015, the parties addressed the nuts and bolts of the upcoming hearing, such as where and when it would occur and which witnesses might testify. The court then held a call in September 2015 to discuss rescheduling the evidentiary hearing and setting a schedule to brief the question of McChesney contacting jurors to investigate his allegations. Prior to this call, McChesney's counsel filed a motion requesting that the court hold a telephonic conference and requested that McChesney participate in the conference because it would be a "crucial stage" of the proceedings. It appears McChesney's request to participate in the call was denied. The court held a third call in October 2015 concerning a proposed questionnaire to ask the jurors if anyone heard McFarren's comments. On this call, McChesney's counsel again advised that his client wished to be included "on any and all conference calls" and expressed concern that the call "may be a critical stage." The court disagreed with this characterization because the call merely involved ...

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