9th Cir.;
16-30052

The court of appeals affirmed a judgment of conviction. The court held that the defendant failed to provide credible evidence to support his claim that a bitter ex-girlfriend denigrated him to the jury.

A jury found Benjamin McChesney guilty of theft and possession of stolen firearms. He moved for a new trial, claiming 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.” To support his motion, 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. McChesney 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. The court of appeals remanded with instructions to conduct an evidentiary hearing. Lennick testified at hearing, as did her daughter, Tna Romero, who in large part confirmed her mother's account of McFarren's conduct, although she disagreed as to whether McFarren's comments were restricted to the courthouse lobby or also took place in the elevator. Heather McLean, the court's jury coordinator, disputed their account of events, testifying that jurors are generally not permitted to mingle with the public, either in the elevator or in the courthouse lobby. The lead court security officer corroborated McLean's testimony. Finally, McChesney's defense attorney directly contradicted Lennick's testimony that she alerted him to McFarren's tirade.