Monday, September 11, 2017

US v. McChesney, No. 16-30052 (9-11-17)(McKeown w/Callahan & Ikuta). The 9th affirms the district court's denial of a motion for a new trial.  The defendant, after conviction for a gun heist, argued that his ex-girlfriend had accosted jurors and made disparaging remarks about him, and that he should "go to prison." This issue was raised in the first appeal, and the 9th remanded for an evidentiary hearing "to dig a little deeper." The court dug deeper, and found that the allegations were not credible.  Court staff heard no such haranguing; jurors reported no contact with anyone about the case; and defense witnesses' stories did not align.  The 9th found the district court had not erred in finding "no credible evidence" any improper contact occurred. The defendant did not carry his burden.

As for other issues raised, the 9th held that the district court did not commit error in not recalling the jurors for live testimony.  This was a case where it was not required.  The court used a questionnaire instead as a way to contact the jurors years after the trial.  There was no error in the defendant not being present when procedures were discussed for the hearing.  It was a close call, especially as it related to objections to a questionnaire, but any error was harmless.  The district court did not abuse its discretion in failing to recuse itself.  Finally, defendant waived any error in the failure to preserve surveillance video as it was not raised in the first appeal.

The decision is here:


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