                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 without 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.
