952 F.2d 1400
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOSE CARLOS CHAVEZ-VERNAZA, Defendant-Appellant.andJOSEPH CRABTREE, Warden FCI Sheridan, Defendant.UNITED STATES OF AMERICA, Plaintiffs-Appellees,v.JOSE CARLOS CHAVEZ-VERNAZA, Defendant-Appellant.
Nos. 91-30195, 91-30198.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 10, 1992.*Decided Jan. 14, 1992.

Before JAMES R. BROWNING, D.W. NELSON and CANBY, Circuit Judges.


1
MEMORANDUM**


2
Chavez-Vernaza appeals the denial of his motion for a new trial, arguing that he is entitled to a second evidentiary hearing.   We affirm.


3
The usual remedy in cases alleging juror misconduct is an evidentiary hearing "in which the defendant has the opportunity to prove actual bias" and in which all interested parties are permitted to participate.   Smith v. Phillips, 455 U.S. 209, 215, 216 (1982).   Such a hearing was held.   The government subpoenaed the two witnesses relied upon in defendant's motion for a new trial.   The defendant did not request the presence of the juror at the hearing.   There is nothing in the record to indicate that defendant was denied the right to do so.


4
The district judge found the motion meritless, rejecting the testimony of the two witnesses as not credible.   A district judge's finding that the witnesses were not credible is entitled to deference on appeal.


5
The district judge denied a second hearing because the testimony of the two witnesses was not credible and did not therefore warrant such a hearing, and because the defendant failed to request the presence of the juror in a timely fashion.   The district court did not abuse its discretion in refusing to conduct a second hearing.


6
AFFIRMED.



*
 The panel unanimously finds this case suitable for decision without oral argument.   Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


