not admitted at trial. He further contends that the district judge should have recused himself from deciding the new trial motion. Finally, he argues that the amount of the forfeiture money judgment entered against him should have been decided by the jury, rather than by the court. We assume the parties’ familiarity with the underlying facts and procedural history. As to Espada’s challenge to the denial of his Rule 33 motion: Espada alleges misconduct by the presiding judge and argues that the inquiry should not have been conducted by the judge himself. While it would ordinarily be better for such an inquiry to be conducted by another judge, our review of the record convinces us that denial of the motion was proper. Cf. United States v. Ianniello, 866 F.2d 540, 543 (2d Cir.1989) (<HOLDING>). Although the appeal waiver in Espada’s plea
holding that an alternates presence in the jury room for a brief period at the beginning of jury deliberations was a violation of this constitutional right holding that district court could not decide after jury returned verdict to treat jury verdict as advisory on issue not triable of right by jury but which was tried by consent of parties to nonadvisory jury holding that failure to object to trial courts refusal of further instruction to jury during deliberation results in waiver of issue on appeal recognizing that postverdict inquiries may lead to evil consequences subjecting juries to harassment inhibiting jury room deliberation burdening courts with meritless applications increasing temptation for jury tampering and creating uncertainty in jury verdicts but remanding for a hearing under the circumstances of that case holding district court could not declare jury advisory in action triable of right by a jury and even if no right to jury trial existed in case it would be abuse of discretion to declare jury advisory after both sides rested but before jury was instructed