United States v. Benally
United States v. Benally
Opinion of the Court
MEMORANDUM
Delyne Benally appeals his conviction on one count of assault on an Indian child in violation of 18 U.S.C. §§ 1153 and 113(a)(6). He argues that the district court abused its discretion in denying his request for a new trial. We disagree, and affirm.
Benally contends that the district court erred by analyzing his motion for a new trial under doctrine addressing a mistaken voir dire answer, see McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), and actual or implied bias, see Tinsley, 895
Benally also maintains that the court shifted the burden to him and imposed an overly burdensome standard of proof by stating that the determining factor was whether it was “highly unlikely” that Juror 25 could exercise independent judgment. We disagree, as implied or presumed bias — which was the basis asserted for a new trial that the district court addressed
Finally, Benally suggests that we should question the plausibility of Juror 25’s claims. However, the court held an evi-dentiary hearing at which Benally had the opportunity to suggest questions to be posed to the juror and to present any argument that he wished. The judge credited Juror 25’s explanation. To question plausibility is just another way of questioning credibility, and nothing in the record suggests that Juror 25’s testimony was inaccurate, dishonest, or unworthy of belief. In this respect this case is quite unlike Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc), upon which Benally relies, where the juror repeatedly, and obviously, was untruthful.
AFFIRMED.
Judge REINHARDT concurs in the result.
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.
. Benally concedes that the juror did not appear dishonest in any way.
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