United States v. Robert McGowan
668 F.3d 601
| 9th Cir. | 2012Background
- McGowan, a former state prison guard, was convicted on two §242 counts and a conspiracy charge related to assaults on inmates.
- District court granted a judgment of acquittal on the §242 counts but did not rule on a potential new-trial motion under Rule 33.
- This Court reversed the acquittal ruling and remanded for reassignment to a different district judge.
- On remand, a new district judge denied a new-trial motion as untimely and McGowan was resentenced.
- During sentencing, Seevers’ allegations of drug activity were relied on; the district court imposed 51 months.
- The sentence was vacated and remanded for resentencing before a different judge due to unreliability of the Seevers allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 29(d) conditional new-trial ruling | McGowan argues district court erred by not conditionally ruling on a new trial. | McGowan did not move for a new trial; Rule 29(d) requires a motion. | No error; conditional ruling required a defendant's motion. |
| Ineffective assistance for not filing a new-trial motion | Counsel failed to pursue a potential new trial. | Record insufficient to determine whether performance was deficient. | Dismissed without prejudice to raising in a §2255 proceeding. |
| Due process and reliance on Seevers' allegations | Reliance on unreliable Seevers statements violated due process. | No due process violation shown beyond the record. | Sentence vacated and remanded before a new district judge due to unreliability. |
Key Cases Cited
- United States v. Moran, 393 F.3d 1 (1st Cir. 2004) (reasonableness of decisions after acquittal and timing of motions for new trials)
- United States v. Navarro Viayra, 365 F.3d 790 (9th Cir. 2004) (cannot sua sponte convert acquittal to new trial; must be defendant-initiated)
- Theus v. United States, 611 F.3d 441 (8th Cir. 2010) (defendant-initiated motion required for new trial; strategic reasons may affect choice to seek)
- United States v. Hanna, 49 F.3d 572 (9th Cir. 1995) (reliability of sentencing information requires indicia of reliability)
- United States v. Carter, 219 F.3d 863 (9th Cir. 2000) (Rule 32 Rule 32(i)(3)(B) and disputed facts in sentencing)
- Harrington v. Richter, 131 S. Ct. 770 (2011) (strong presumption of reasonableness for counsel performance; Strickland standard)
- United States v. Jeronimo, 398 F.3d 1149 (9th Cir. 2005) (ineffective-assistance claim exceptions; need record development)
- United States v. Daychild, 357 F.3d 1082 (8th Cir. 2004) (counsel strategic decisions in trial strategy)