United States v. Benjamin McChesney

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30052

Plaintiff-Appellee,

D.C. No.

v. 1:12-cr-00066-

SPW-1

BENJAMIN QUINN MCCHESNEY,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the District of Montana

Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted June 8, 2017

Seattle, Washington

Filed September 11, 2017

Before: M. Margaret McKeown, Consuelo M. Callahan,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeown

2 UNITED STATES V. MCCHESNEY

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

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. MCCHESNEY 3

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.

COUNSEL

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.

OPINION

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

4 UNITED STATES V. MCCHESNEY

burden to offer any credible evidence to establish outside

contact with a juror.

BACKGROUND

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.

UNITED STATES V. MCCHESNEY 5

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 “setting up the procedure” to contact the jurors, and

the court also noted that McChesney was represented by

counsel on the call and could submit written objections to

the procedure. McChesney submitted his written objections

through counsel two days later. The court then sent the

questionnaire to the jurors.

Within a few weeks of the third call, McChesney filed a

motion to disqualify the district court. McChesney alleged

that the court was biased against him and had “conducted

fact-finding as to disputed facts” by talking with court staff

before resolving his motion for a new trial the first time

around. The court denied the motion, disavowing the

6 UNITED STATES V. MCCHESNEY

claimed bias and any improper investigation of

McChesney’s claims.

With the path now clear to resume, the district court held

an evidentiary hearing in December 2015. Five witnesses

testified. First up was Lennick, who said she was “small-

talking” with a juror after leaving the courtroom at lunchtime

during McChesney’s trial. According to Lennick, while she

and the juror “were talking in front of the elevator and riding

down,” McFarren “started talking about how [McChesney]

was a piece of shit and he deserved to go to prison.” This

tirade apparently continued when everyone left the elevator

and stopped in the lobby to return their visitor badges.

Lennick claimed McFarren was talking “the whole time” and

was “really boisterous and loud” when everyone waited in

line to return their badges. “[E]verybody heard it,” she said,

including “the guys that were checking us out at the front

door.” Lennick also swore she reported everything to David

Merchant, the Assistant Federal Defender who had

represented her son during the trial.

Next to testify was Lennick’s daughter, Tana Romero,

who said she was with Lennick and the juror when McFarren

began yelling her disparaging remarks. Romero recalled that

the remarks happened “[a]ll the way down” and “all of the

way out of the elevator” and continued as she left the

courthouse after returning her badge. Although Romero

initially testified that the remarks were “loud,” she offered

contradictory testimony about whether the statements—loud

or otherwise—were confined to the elevator or continued in

lobby. Both Lennick and Romero agreed that jurors

routinely rode in the public elevator and mingled with the

public during breaks at trial, all outside the presence of court

staff.

UNITED STATES V. MCCHESNEY 7

The stories told by Lennick and Romero did not align

with the protocols described by court staff. Heather

McLean, the court’s jury coordinator, testified that none of

the jurors reported extrinsic contact during McChesney’s

trial, despite instructions to alert court staff immediately “if

anybody approaches them or [] tries to strike up a

conversation.” McLean also explained that the jury

coordinator does a head count before anyone leaves the jury

room and that the jurors cannot mingle with the public and

must stick together when entering the lobby or riding the

elevator. “[W]e kind of travel like a kindergarten group,

short of the rope,” she quipped.

Roxanne Bauer, the lead court security officer,

corroborated McLean’s testimony. She testified that the

officers on duty during McChesney’s trial would have

overheard and reported any loud outbursts but that no officer

remembered hearing anything and no report was made. And

the final—and key—witness, David Merchant, directly

contradicted Lennick’s testimony that she alerted him to

McFarren’s tirade. He swore that Lennick never mentioned

contact between jurors and McFarren or any instances of

jurors riding the elevator with witnesses. When

McChesney’s counsel asked Merchant on cross-examination

why he had never investigated the allegations of improper

juror contact, he replied simply: “I don’t believe it

happened.”

The district court denied McChesney’s motion for a new

trial, finding that there was “no credible evidence” McFarren

ever made statements to any juror. In the court’s view,

Lennick and Romero were “not credible for several

reasons.” Their stories diverged on material issues, and

neither Lennick’s nor Romero’s “version of events

comport[ed] with courthouse policy,” as “very credibl[y]”

8 UNITED STATES V. MCCHESNEY

and “knowledgeabl[y]” described by McLean and Bauer. To

cap things off, Merchant had “very credibl[y]” contradicted

Lennick’s testimony that they had spoken about McFarren

interacting with a juror. The court also found that the

“familial relationship” between McChesney’s co-defendant

and Lennick and Romero cast “doubt on their credibility”

and suggested “bias may have colored their testimony”

because they had “a clear interest in the possibility of a new

trial” for McChesney and his co-defendant. Finally, the

court noted that every juror except one alternate had

responded to the court’s questionnaire and sworn “under

penalty of perjury” that none of the jurors had heard “any

inappropriate comments during their jury service.” Because

the court found “there [was] no credible evidence any

statements were made,” it declined to reach the question of

possible juror prejudice.

ANALYSIS

At its core, McChesney’s appeal challenges the district

court’s decision to deny him a new trial based on his claims

of improper contact with the jury. His other arguments on

appeal all relate to how the district court reached that

decision and whether the court’s procedures were improper.

To frame these issues, we begin with the main act: the

district court’s refusal to grant McChesney a new trial.

I. Contact with the Jury

Although we review de novo the denial of a motion for a

new trial based on allegations of improper juror contact, the

district court’s underlying factual findings are reviewed for

clear error. United States v. Lopez-Martinez, 543 F.3d 509,

UNITED STATES V. MCCHESNEY 9

517 & n.4 (9th Cir. 2008). 1 McChesney bears the initial

burden of producing credible evidence to support his bare

assertion that McFarren made improper statements to a juror.

See Godoy v. Spearman, 861 F.3d 956, 967–68 (9th Cir.

2017) (en banc) (“The defendant must present evidence of a

contact sufficiently improper as to raise a credible risk of

affecting the outcome of the case.”); Tarango v. McDaniel,

837 F.3d 936, 947 (9th Cir. 2016) (explaining that

“[t]hreadbare or speculative allegations” will not do the

trick). After the district court considered all the evidence

following the evidentiary hearing, it found there was “no

credible evidence” that McFarren ever made statements to a

juror. This finding was not clearly erroneous.

Substantial evidence supported the district court’s

credibility determination. The government’s witnesses cast

doubt on the truth of Lennick’s and Romero’s stories.

“[V]ery credible” testimony from McLean and Bauer

disputed the idea that stray jurors freely roamed the

hallways, hobnobbing with trial witnesses and spectators in

the elevator and lobby. None of the court security officers

on duty reported any disruption, despite Lennick’s and

Romero’s claims that McFarren aired her grievances about

McChesney in the crowded area beside the security

checkpoint. McLean also testified that the jurors were

required to keep their badges throughout the trial and would

not have been “returning” them in the lobby as Lennick and

1

The government asserts that the denial of McChesney’s motion for

a new trial is reviewed for abuse of discretion. While that is typically

the standard for this kind of motion, review is de novo when the claim

involves allegations of juror exposure to extrinsic evidence. Lopez-

Martinez, 543 F.3d at 517 & n.4; United States v. Saya, 247 F.3d 929,

937 (9th Cir. 2001).

10 UNITED STATES V. MCCHESNEY

Romero described. 2 Lastly, Merchant explicitly rejected

Lennick’s testimony that she told him all about McFarren’s

outburst in a juror’s presence.

To make matters worse, Lennick and Romero offered

somewhat inconsistent accounts of what allegedly occurred.

For example, Lennick described McFarren as “really

boisterous and loud” in the lobby, whereas Romeo testified

that McFarren spoke “in a normal conversational tone” after

exiting the elevator. The court’s adverse credibility finding

against Lennick was also supported by other features of her

testimony, such as her inability to identify the juror with any

specificity despite her claims that she had observed him

closely throughout the trial. Although there may be a

plausible explanation for some of these inconsistencies,

alternative theories do not render the district court’s factual

findings clearly erroneous. McChesney “has simply failed

to establish that any contact has occurred, much less that any

juror[] contact resulted in actual prejudice.” See United

States v. English, 92 F.3d 909, 914 n.6 (9th Cir. 1996); see

also United States v. Harber, 53 F.3d 236, 242–43 (9th Cir.

1995).

McChesney did not carry his initial burden of supporting

his allegations with credible evidence. The district court’s

factual findings were not clearly erroneous and its denial of

the motion for a new trial was not in error.

2

Although McLean was not the jury clerk at the time of the alleged

statements, the district court did not err by crediting her testimony about

general courthouse procedures of which she was “thoroughly

knowledgeable.”

UNITED STATES V. MCCHESNEY 11

II. Questionnaire for the Jurors

McChesney faults the district court for blocking his

attempts to communicate with the jurors before the

evidentiary hearing. He essentially argues that the court

abused its discretion by refusing to recall the jury for live

questioning, by preventing him from contacting the jurors

himself, and by relying on a court-drafted questionnaire that

was sent to each juror. See United States v. Montes, 628 F.3d

1183, 1187 (9th Cir. 2011) (reviewing decision not to take

live testimony from jurors for abuse of discretion).

Although it is sometimes necessary or prudent to recall

or question jurors when investigating allegations of

improper contact, it is not always required. Montes,

628 F.3d at 1188. Rather, district courts have the “discretion

. . . to preclude live juror testimony” in certain

circumstances. Id. Here, the district court declined to solicit

live testimony because “no credible evidence” supported

McChesney’s allegations. Given the lack of evidentiary

foundation that any contact even occurred, it was not an

abuse of discretion to refuse McChesney’s request to haul in

the jurors years after the trial had ended. Nor was it an abuse

of discretion to preclude McChesney from contacting the

jurors directly; as the district court said, such an

“interfere[nce] in the personal lives of the jurors would be

invasive and possibly intimidating.” To alleviate these

legitimate concerns, the court used the questionnaire as a

compromise approach “to reconcile the need to investigate

the claims . . . without unduly imposing on the jurors.”

Although the actual jurors were never cross-examined, their

unanimous response to the questionnaire was to swear

“under penalty of perjury” that they had not heard

McFarren’s derogatory comments. (Only an alternate juror

12 UNITED STATES V. MCCHESNEY

did not return the form.) This response was in accord with

the other evidence before the district court.

McChesney’s objections to the questionnaire itself are

also with merit. He bemoans the ease with which a juror

could reply untruthfully, but that concern was mitigated by

the court’s requirement that the juror declare “under penalty

of perjury” that the answer was “true and correct.” He also

claims that the questionnaire inquired only about comments

made at a specific time on a specific date—lunchtime on July

10, 2013—when in fact the jurors might have been

“contacted improperly on July 11.” Even setting aside that

the genesis of this specific time and date was Lennick’s

affidavit, McChesney’s premise is false because the

questionnaire inquired about comments made “on or about

July 10.” It is far-fetched to suggest that jurors would

neglect to tell the court about McFarren’s comments because

of a timing technicality regarding events that happened so

many years ago.

Under the circumstances, the district court’s method of

balancing the competing interests was not “illogical,” nor

did it “exceed the permissible bounds of its discretion.” See

Montes, 628 F.3d at 1187, 1189. There will be cases where

live juror testimony is essential to investigating allegations

of improper contact, but this is not one of them.

III. Recusal of the District Court

McChesney asked the district court to recuse itself under

28 U.S.C. § 455(a) and (b) due to alleged bias and a lack of

impartiality. “[J]udicial rulings alone almost never

constitute a valid basis for a bias or partiality motion,” and

“expressions of impatience, dissatisfaction, annoyance, and

even anger” alone are insufficient to establish “bias or

UNITED STATES V. MCCHESNEY 13

partiality.” Liteky v. United States, 510 U.S. 540, 555–56

(1994).

McChesney argues that the district court’s legal rulings

reveal bias and partiality. That allegation is hard to swallow

after reviewing the record. Nothing in the court’s rulings

suggests any partiality and certainly nothing “display[ed] a

deep-seated favoritism or antagonism that would make fair

judgment impossible.” Id. at 555. Although the district

court at times showed some wry impatience at McChesney’s

requests, jocular comments are no basis for recusal. Id. at

555–56.

McChesney also impugns the district court’s impartiality

by alleging that the court “conducted fact-finding” on its

own, speaking with court security officers about “disputed

evidentiary facts” related to the purported juror contacts.

The basis for this allegation is unclear but seems related to

our disposition in McChesney’s first appeal, in which we

noted that the “factual basis” for the district court’s original

assertion that officers would have heard and reported

McFarren’s outburst was neither “self-evident” nor “in the

record.” McChesney, 613 F. App’x at 561. The same cannot

be said today. Bauer testified at the evidentiary hearing that

no officers had spoken with the court about this issue, and

the court itself asserted that the earlier “observations were

based on [] experience entering and exiting the building and

general experience as a judicial officer.”

In the face of McChesney’s speculative accusation, the

court did not abuse its discretion by denying the recusal

motion. See United States v. Studley, 783 F.2d 934, 939 (9th

Cir. 1986) (reviewing for abuse of discretion the denial of a

motion to disqualify).

IV. Exclusion from the Telephonic Conferences

14 UNITED STATES V. MCCHESNEY

Under the Fifth Amendment’s Due Process Clause, a

defendant has “the right to be present at any stage of the

criminal proceeding that is critical to its outcome if his

presence would contribute to the fairness of the procedure.”

See Kentucky v. Stincer, 482 U.S. 730, 745 (1987). 3

McChesney argues the three pre-hearing telephonic

conferences were “critical stage” proceedings that he had a

right to attend. We review these claims de novo and for

harmlessness. United States v. Rosales-Rodriguez, 289 F.3d

1106, 1109–10 (9th Cir. 2002).

“A critical stage is any ‘stage of a criminal proceeding

where substantial rights of a criminal accused may be

affected.’” Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir.

2006) (quoting Mempa v. Rhay, 389 U.S. 128, 134 (1967)).

In determining whether a proceeding qualifies as a “critical

stage,” we consider three factors: (1) whether “failure to

pursue strategies or remedies results in a loss of significant

rights,” (2) whether “skilled counsel would be useful in

helping the accused understand the legal confrontation,” and

(3) whether “the proceeding tests the merits of the accused’s

case.” Id. at 901 (quoting Menefield v. Borg, 881 F.2d 696,

698–99 (9th Cir. 1989)). Because McChesney was

represented by counsel and no confrontation occurred on the

calls, only the first and third factors could be relevant here.

See United States v. Benford, 574 F.3d 1228, 1233 (9th Cir.

2009).

3

McChesney asserts rights under both the Fifth and Sixth

Amendments, but his claim properly sounds in due process—and not the

Sixth Amendment—because the telephonic conferences did not involve

“confront[ation] with the witnesses against him” and he was not denied

“the assistance of counsel.” See U.S. Const. amend. VI.

UNITED STATES V. MCCHESNEY 15

The first two calls dealt with preliminary scheduling and

procedural issues related to the evidentiary hearing and were

of an administrative nature where McChesney’s presence

was not required. The calls could not have affected

McChesney’s substantial rights, so neither was a “critical

stage.” See Hovey, 458 F.3d at 901; see also Benford,

574 F.3d at 1232–33 (holding that the pretrial status

conference in that case was not a “critical stage” because

“[n]othing significant occurred,” “there was no ‘loss of

significant rights,’” and it “plainly did not ‘test[] the merits

of the accused’s case’”).

The third phone conference presents a closer call. The

court and the parties were discussing the juror

questionnaire—a questionnaire that in some sense

implicated McChesney’s “significant rights” but did not test

the “merits” of his motion for a new trial. See Hovey,

458 F.3d at 901. However, even if we assume this call did

qualify as a “critical stage,” McChesney would have no right

to attend unless “his presence would contribute to the

fairness of the procedure.” See Stincer, 482 U.S. at 745.

McChesney was represented by counsel during the call and

had the opportunity to submit written objections to any of

the procedures discussed by the parties and the court.

Indeed, during the call itself, counsel said he would submit

written objections and previewed what those objections

would be. The written objections filed two days later largely

mirrored the oral objections announced during the call.

Although not persuaded, the district court considered the

objections and the alternative approaches outlined in the

written objections. Nothing in the record suggests that

McChesney’s presence on the line during the call itself

would have contributed in any way to the proceeding’s

fairness, and so no due process violation occurred. For

similar reasons, even if an error had occurred, any error in

16 UNITED STATES V. MCCHESNEY

excluding McChesney was harmless. See Campbell v. Rice,

408 F.3d 1166, 1172 (9th Cir. 2005) (en banc).

V. Preservation of the Surveillance Videos

McChesney’s final argument concerns the destruction of

courthouse surveillance videos that he says could have

supported his allegations of improper juror contact. He first

requested these videos after he filed his first motion for a

new trial. The district court never ruled on his request and

McChesney never followed up with the court, nor did he

raise the issue in his first appeal. 4 By the time the case

returned to the district court two years later for the

evidentiary hearing, the videos had been destroyed in the

ordinary course of courthouse business. Bauer confirmed at

the hearing that no surveillance remained from

McChesney’s trial and that these videos generally were

discarded every two months.

McChesney argues that reversal is necessary because the

court and the government failed to preserve the videos.

Although he dubs this a “Brady challenge” because he says

the videos “could include Brady material,” see Brady v.

Maryland, 373 U.S. 83, 87 (1963), the label is not what

matters. His claim is essentially that the destruction of

potentially useful evidence violated his right to due

4

Although the district court never used the word “denied” with

respect to McChesney’s motion under Fed. R. Crim. P. 17(b) to obtain

the videos, the district court’s initial order denying McChesney’s motion

for a new trial addressed the Rule 17(b) motion and provided reasons

that supported denial. Specifically, the district court noted that

Lennick’s affidavit alleged that McFarren’s comments were made in the

lobby, but the videos requested were of the fifth floor. Because

McChesney did not raise this issue in his first appeal, we do not address

whether the district court was required to deny the motion expressly.

UNITED STATES V. MCCHESNEY 17

process—a claim we review de novo. See United States v.

Ross, 372 F.3d 1097, 1107 (9th Cir. 2004).

McChesney forfeited any right to challenge the

destruction of the videos because his briefing in the first

appeal never mentioned the district court’s failure to rule on

his request to provide them. See Tibble v. Edison Int’l,

843 F.3d 1187, 1196 (9th Cir. 2016) (en banc). Even

without forfeiture, his claim fails because “[t]here is no

principled reason” why he should avoid having to show bad

faith. 5 See United States v. Barton, 995 F.2d 931, 935 (9th

Cir. 1993); see Arizona v. Youngblood, 488 U.S. 51, 58

(1988) (“[U]nless a criminal defendant can show bad faith

on the part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of

law.”).

Not only does McChesney fail to allege bad faith, he

explicitly disavows “any allegation of prosecutorial

misconduct.” Nothing in the record betrays any shenanigans

by the prosecutor or the court. To the contrary, the only

evidence concerning the fate of the videos is Bauer’s

testimony that surveillance footage was routinely discarded

as part of the court’s ordinary practice. The government’s

compliance with regular procedures “should be regarded as

an indication that the disposal of evidence was not

performed in ‘bad faith.’” United States v. Heffington,

5

Because McChesney’s claim fails under Youngblood’s bad faith

standard, we need not and do not decide whether McChesney would have

a cognizable due process claim even if the government acted in bad faith.

18 UNITED STATES V. MCCHESNEY

952 F.2d 275, 281 (9th Cir. 1991). McChesney’s claim must

fail.

AFFIRMED.