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, 952 F.2d 1400 (9th Cir. 1992)

MEMORANDUM^** 

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

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.

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.

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.

AFFIRMED.