and Submitted June 8, 2017 Seattle, Washington
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
O. C. Ball (argued), Hendrickson Law Firm P.C., Billings,
Montana, for Defendant-Appellant.
Johnson (argued), Acting United States Attorney, United
States Attorney's Office, Billings, Montana, for
Before: M. Margaret McKeown, Consuelo M. Callahan, and Sandra
S. Ikuta, Circuit Judges.
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
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
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.
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:
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.
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.
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.
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.
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