United States v. Benjamin McChesney
2017 U.S. App. LEXIS 17493
| 9th Cir. | 2017Background
- McChesney was convicted of theft and possession of stolen firearms and moved for a new trial alleging his ex‑girlfriend (Krista McFarren) made loud, derogatory comments about him to jurors in the courthouse lobby/elevator during trial.
- He supported the motion with an affidavit from co‑defendant’s mother (Julie Lennick) and sought courthouse surveillance video; the district court initially denied a new trial and did not rule on the video request.
- This Court remanded for an evidentiary hearing to determine whether the statements were made and heard by jurors, and whether they might have affected the verdicts.
- At the evidentiary hearing, Lennick and her daughter testified they heard McFarren loudly disparage McChesney in the elevator/lobby; courthouse staff (jury coordinator Heather McLean and CSO Roxanne Bauer) testified jurors travel together and no officer reported hearing anything.
- Assistant Federal Defender David Merchant testified Lennick never told him about such contact and he did not investigate because he did not believe it happened; the district court found Lennick and Romero not credible and that there was "no credible evidence" of any juror contact.
- The court also sent a questionnaire to jurors (all but one alternate returned sworn denials), denied recusal and defendant’s requests to attend certain teleconferences, and found no due process violation from destroyed surveillance tapes (routine disposal; no bad faith alleged).
Issues
| Issue | McChesney's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether credible evidence showed improper contact with jurors warranting a new trial | Lennick’s affidavit and testimony that jurors heard McFarren’s derogatory statements | Courthouse procedures, officer testimony, juror questionnaires, and Merchant’s contradiction show no credible proof of contact | Court: No credible evidence; district court’s factual findings not clearly erroneous; new trial denied |
| Whether jurors should have been recalled for live testimony or defendant allowed direct contact | Live questioning or defendant contact was necessary to test allegations | Court used sworn written questionnaire to avoid intimidating jurors; live recall unnecessary given lack of foundation | Court: Use of questionnaire was within discretion; no abuse in refusing live recall or direct contact |
| Whether district judge should have recused for alleged bias / extra-record factfinding | Judge displayed bias and conducted independent factfinding by consulting staff | Judicial rulings and procedural comments do not show bias; officers testified no prior ex parte inquiries; judge’s comments insufficient for recusal | Court: Denial of recusal not an abuse of discretion |
| Whether destruction of surveillance videos violated due process (Brady/bad faith) | Videos could have corroborated the contact; destruction denied inspection and relief | Videos discarded routinely; McChesney forfeited earlier challenge and alleges no bad faith by court or prosecutors | Court: Forfeited and, in any event, absent bad faith failure to preserve potentially useful evidence does not violate due process; claim fails |
Key Cases Cited
- Lopez‑Martinez v. United States, 543 F.3d 509 (9th Cir.) (review de novo for juror exposure claims; district factual findings reviewed for clear error)
- Montes v. United States, 628 F.3d 1183 (9th Cir. 2011) (district court has discretion to preclude live juror testimony in certain investigations)
- Youngblood v. Arizona, 488 U.S. 51 (1988) (absent bad faith, failure to preserve potentially useful evidence is not a due process violation)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial rulings and ordinary expressions do not alone establish bias warranting recusal)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor’s duty to disclose exculpatory evidence)