United States Ninth Circuit

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US v. McGowan, 10-50284

In a former state prison guard's appeal of his conviction and sentence stemming from his assault on two inmates, the district court's denial of the defendant's motion for a new trial is affirmed but the sentence is vacated, where: 1) the district court did not err in failing to make a conditional new trial ruling when it earlier granted the defendant's motion for acquittal; 2) the Ninth Circuit could not determine whether the defendant's counsel was constitutionally deficient in failing to request such a ruling, so that the defendant could make a claim for ineffective assistance of counsel in a separate section 2255 proceeding; and 3) the defendant’s right to due process was violated when the district court relied on unreliable, unsubstantiated allegations in imposing his sentence.

Appellate Information

  • Decided 01/26/2012
  • Published 01/26/2012

Judges

  • Reinhardt

Court

  • United States Ninth Circuit

Counsel

  • For Appellant:
  • Andre Birotte Jr., Dennis P. Riordan