FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50284

Plaintiff-Appellee, D.C. No.

v.  2:07-cr-00113-

ODW-1 ROBERT MCGOWAN,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Otis D. Wright, District Judge, Presiding

Manuel L. Real, District Judge, Presiding

Argued and Submitted

January 10, 2012—Pasadena, California

Filed January 26, 2012

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and

William A. Fletcher, Circuit Judges.

Opinion by Judge Reinhardt

941
COUNSEL

Andre Birotte Jr., U.S. Attorney, Los Angeles, California;

Robert E. Dugdale, Assistant U.S. Attorney, Los Angeles,

California; Lawrence S. Middleton, Assistant U.S. Attorney,

Los Angeles, California; Elana Shavit Artson, Assistant U.S.

Attorney, Los Angeles, California, for the plaintiff-appellee.

Dennis P. Riordan, San Francisco, California; Donald M.

Horgan, San Francisco, California, for the defendantappellant.

OPINION

REINHARDT, Circuit Judge:

Robert McGowan (“McGowan”), a former state prison

guard, appeals his conviction and sentence stemming from his

assault on two inmates. His case has been before us once

before: we previously reversed the district court’s grant of a

judgment of acquittal following the jury’s guilty verdict.

McGowan now contends that the district court erred in failing

to conditionally rule that he was entitled to a new trial if the

944 UNITED STATES v. MCGOWAN
judgment of acquittal were to be reversed, and that he was

deprived of the effective assistance of counsel when his trial

counsel failed to make a new trial motion. We hold that a district court is not required to make, indeed has no authority to

make, any ruling as to the grant of a new trial unless the

defendant makes a motion requesting such a ruling. We also

dismiss McGowan’s ineffective assistance claim without prejudice to its being raised in a proceeding under 28 U.S.C.

§ 2255. McGowan further contends that he was deprived of

due process when the district judge relied on a prison inmate’s

unreliable allegations at sentencing. Because the allegations in

question were insufficiently reliable to serve as a basis for the

51-month sentence imposed, we vacate McGowan’s sentence

and remand for re-sentencing. That proceeding, as well as any

collateral proceedings, shall be held before a new district

judge.

I.

McGowan was indicted on two counts of violating 18

U.S.C. § 242 by depriving inmates of their constitutional right

to be free of cruel and unusual punishment. He was also

charged with conspiring to obstruct justice for his participation in a scheme to impede the grand jury investigation of the

assaults in which he was involved. After a jury found him

guilty on all counts, he moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c). He did

not, however, move for a new trial pursuant to Federal Rule

of Criminal Procedure 33. The district judge granted McGowan’s motion for acquittal, but did not indicate how he would

have ruled on a motion for a new trial had one been made.

The government appealed the district court’s grant of a

judgment of acquittal on the § 242 counts. We reversed, holding that the evidence was sufficient to allow a jury to conclude that McGowan had “used force against two inmates for

the sole purpose of causing them harm,” and remanded for

assignment to another district judge. United States v. McGoUNITED STATES v. MCGOWAN 945
wan, 338 Fed. Appx. 662 (9th Cir. 2009). Following the

remand, McGowan filed a motion for a new trial, which the

new district judge denied as untimely.

Upon the reinstatement of McGowan’s conviction, the probation office submitted a report that calculated McGowan’s

Sentencing Guidelines range as 41 to 51 months of incarceration. It later submitted a letter recommending that McGowan

nevertheless be sentenced to a term of probation and home

detention. The government objected to the probation office’s

recommendation, disputing, among other things, the characterization of McGowan as a “productive and law abiding

member of his community.” The government emphasized that

McGowan had been accused of using methamphetamine and

smuggling drugs to inmates in prison, allegations that it

argued were “sufficiently credible that he should not receive

a below guidelines sentence based on previous good conduct.” These allegations were based entirely on the claims of

Ricky Seevers (“Seevers”), an inmate who served time at the

Chino state prison at which McGowan worked.

At the sentencing hearing, the new district judge calculated

the Guidelines range to be 51 to 63 months.1 After hearing

arguments from both parties, he announced that he was

imposing a sentence of 51 months. In the course of explaining

how he had arrived at this decision, he recounted Seevers’

allegations regarding McGowan’s drug activities, concluding

that this “information was given under circumstances which

gives the Court confidence of its reliability.” McGowan now

appeals.

II.

[1] McGowan contends that the first district judge failed to

1

In contrast to the probation office, the district judge determined that

McGowan had committed perjury at trial and that a two-level obstruction

of justice enhancement should be applied. 

946 UNITED STATES v. MCGOWAN
comply with the dictates of Federal Rule of Criminal Procedure 29(d) by granting his motion for a judgment of acquittal

without making a conditional determination as to whether he

would also grant him a new trial under Rule 33 should the

judgment of acquittal be reversed (as it ultimately was). Rule

29(d) provides: 

If the court enters a judgment of acquittal after a

guilty verdict, the court must also conditionally

determine whether any motion for a new trial should

be granted if the judgment of acquittal is later

vacated or reversed.

Fed. R. Crim. P. 29(d)(1). Because this claim was not raised

before the district court, we review for plain error. See United

States v. Treadwell, 593 F.3d 990, 996 (9th Cir. 2010). 

[2] In referring to “any motion for a new trial,” Rule 29(d)

refers only to pending new trial motions made by the defendant. McGowan’s interpretation of Rule 29(d) — that a conditional new trial ruling must be made whenever the district

court grants a motion for acquittal, regardless of whether a

motion for a new trial has been made — is contrary to prior

interpretations of the Rule as well as to the construction of the

Advisory Committee on the Federal Rules. That the motion

must be pending and actual, and not hypothetical or potential,

follows from the strict time limits that Rule 33 places on the

filing of motions for a new trial: all such motions not based

on newly discovered evidence must be made within 14 days

following the jury’s verdict. Fed. R. Crim. P. 33(b)(2). That

the motion must be made by the defendant, and not by the

court, follows from the principle that the defendant is entitled

to pursue his defense in the manner of his choosing. There

may well be reasons for a defendant to move for acquittal but

not for a new trial. In Theus v. United States, for example,

defense counsel moved for acquittal but not for a new trial

because a grant of a new trial would have exposed his client

to a harsher sentence. 611 F.3d 441, 447 (8th Cir. 2010).

UNITED STATES v. MCGOWAN 947
Requiring that a district court always make a conditional ruling would deprive the defendant of the opportunity to make

a decision as to whether he wanted to make such a motion. As

the First Circuit observed in reaching the same conclusion

that we do here, the choice to move for a new trial “is the

defendant’s — and the defendant’s alone.” United States v.

Moran, 393 F.3d 1, 9 (1st Cir. 2004).

We confronted a similar circumstance in United States v.

Navarro Viayra, 365 F.3d 790 (9th Cir. 2004). In that case,

the defense had, after the jury returned a guilty verdict, moved

for a judgment of acquittal but not for a new trial. Id. at 791.

The district court first denied the motion for acquittal, then

converted it into a motion for a new trial, which it granted. Id.

We reversed, holding: 

Rule 29 prohibits sua sponte conversion of a motion

to acquit into a motion for a new trial. Rule 33 precludes a district court from granting a new trial on its

own motion. Taken together, the rules permit a judge

to order a new trial only in response to a defendant’s

motion.

Id. at 795. 

McGowan contends that his case is distinguishable because

in Navarro Viayra the district court had denied the motion for

acquittal and therefore failed to trigger the requirements of

Rule 29(d). The same factors that supported our conclusion in

Navarro Viayra, however, support the application of that rule

here.2 As we emphasized in Navarro Viayra, the Advisory

Committee Notes to Rule 29 explain that the rule was

2

Indeed, the First Circuit relied on our decision in Navarro Viayra in

holding that a district judge did not err when, having granted a motion for

acquittal (that was later reversed), he did not make a conditional ruling as

to a new trial when the defendant had not moved for one. See Moran, 393

F.3d at 9. 

948 UNITED STATES v. MCGOWAN
changed to eliminate language referring to the power of the

court to order a new trial because “[m]otions for new trial are

adequately covered in Rule 33,” and “the original wording is

subject to the interpretation that a motion for judgment of

acquittal gives the court power to order a new trial even

though the defendant does not wish a new trial and has not

asked for one.” Fed. R. Crim. P. 29, Advisory Committee

Notes, 1966 Amendments. Likewise, the Committee Notes to

Rule 33 state that the rule’s language was intended to “make

it clear that a judge has no power to order a new trial on his

own motion, that he can act only in response to a motion

timely made by a defendant. Problems of double jeopardy

arise when the court acts on its own motion.” Fed. R. Crim.

P. 33, Advisory Committee Notes, 1966 Amendments. The

rule underlying this commentary is clear: the district court

may not sua sponte grant a new trial. See Navarro Viayra, 365

F.3d at 795.

[3] We hold that a judge granting a motion for acquittal

may conditionally rule on a motion for a new trial only if the

defendant has made such a motion. The district judge thus did

not err in failing to conditionally grant McGowan a new trial,

as McGowan did not make a motion requesting one.

III.

McGowan claims, next, that his trial counsel rendered constitutionally ineffective assistance in failing to file a new trial

motion. As a “general rule,” we “do not review challenges to

the effectiveness of defense counsel on direct appeal.” United

States v. Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010)

(quoting United States v. Jeronimo, 398 F.3d 1149, 1155 (9th

Cir. 2005)). “Challenge by way of a habeas proceeding is

preferable because it permits the defendant to develop a

record as to what counsel did, why it was done, and what, if

any, prejudice resulted.” United States v. Laughlin, 933 F.2d

786, 788-89 (9th Cir. 1991) (quoting United States v. Pope,

841 F.2d 954, 958 (9th Cir. 1988)). There are, however, two

UNITED STATES v. MCGOWAN 949
“extraordinary exceptions to this general rule”: “(1) where the

record on appeal is sufficiently developed to permit determination of the issue, or (2) where the legal representation is so

inadequate that it obviously denies a defendant his Sixth

Amendment right to counsel.” Jeronimo, 398 F.3d at 1156

(citing United States v. Daychild, 357 F.3d 1082, 1095 (9th

Cir. 2004)). 

Neither exception applies in this case. It is not clear from

the record currently before us that McGowan’s counsel’s performance was deficient. “A court considering a claim of ineffective assistance must apply a ‘strong presumption’ that

counsel’s representation was within the ‘wide range’ of reasonable professional assistance.” Harrington v. Richter, 131

S.Ct. 770, 787 (2011) (quoting Strickland v. Washington, 466

U.S. 668, 688 (1984)). There may well be legitimate justifications for an attorney not to file a motion for a new trial in a

particular case. As the First Circuit explained in dismissing a

similar ineffective assistance claim because it was raised on

direct appeal, “tactical and strategic reasons why a party

might seek a judgment of acquittal but not a new trial”

include “a fear that the prosecution will learn from its mistakes and put in a more persuasive case the second time

around, a fear that the decision-maker will take a request for

acquittal less seriously if a possible compromise — such as a

new trial — is on the table, or a fear that a shift in judges will

lead to a stiffer sentence.” Moran, 393 F.3d at 10; see also

Theus, 611 F.3d at 447 (rejecting a § 2255 petitioner’s ineffective assistance of counsel claim where his attorney had

moved for a judgment of acquittal but had not moved for a

new trial because a new trial would have allowed the government to “seek a superceding indictment” charging the defendant with a crime that would “yield a much higher sentence”).

These considerations could motivate an attorney not to seek

a new trial even after the trial judge had already granted a

judgment of acquittal. A rational defense attorney might not

want to provide any basis for the district judge to adopt a

compromise or reconsider his judgment, or to expose his cli950 UNITED STATES v. MCGOWAN
ent to the possibility of sentencing before a different district

judge should the judgment of acquittal be reversed. 

[4] It is equally possible, of course, that counsel failed to

make a new trial motion because he was unaware of or misread the applicable Federal Rules, or was otherwise deficient

in the performance of his duties. See, e.g., United States v.

Hilliard, 392 F.3d 981, 986 (8th Cir. 2004) (concluding that

a § 2255 petitioner had been deprived of effective assistance

when his trial counsel failed to file a motion for new trial,

even after being directed to do so by the district court,

because he misapprehended the filing deadline). McGowan’s

counsel has not yet had an opportunity to explain his actions.

See Moreland, 622 F.3d at 1157 (holding that the record was

insufficiently developed to entertain an ineffective assistance

claim in part because “defense counsel ha[d] not had an

opportunity to explain his actions”) (citing Laughlin, 933 F.2d

at 789). We therefore cannot “tell from [the] record whether

the [failure] to seek a new trial . . . was a calculated stratagem

or a mere oversight.” Moran, 393 F.3d at 10-11. Accordingly,

we dismiss McGowan’s ineffective assistance of counsel

claim without prejudice to renewing it in a § 2255 proceeding

before the district judge to whom this case will be assigned

following remand. 

IV.

[5] McGowan contends, finally, that he was deprived of

due process when the district court took into account Seevers’

unreliable allegations when imposing a 51-month sentence

upon him. To establish that his right to due process was violated, McGowan must show that the allegations were “(1)

false or unreliable, and (2) demonstrably made the basis for

the sentence.” United States v. Vanderwerfhorst, 576 F.3d

929, 935-36 (9th Cir. 2009) (quoting United States v. Ibarra,

737 F.2d 825, 827 (9th Cir. 1984)). 

UNITED STATES v. MCGOWAN 951
1. ”False or unreliable”

“Challenged information is deemed false or unreliable if it

lacks ‘some minimal indicium of reliability beyond mere allegation.’ ” Id. at 936 (quoting Ibarra, 737 F.2d at 827). Here,

the district judge abused his discretion in finding that Seevers’

claims were reliable.

Seevers did not testify at McGowan’s trial or sentencing

hearing. Instead, the government submitted two documents

which contained his allegations of McGowan’s drug activity.

The first was a transcript of an FBI interview. In that interview, Seevers told FBI agents that, while on parole in 1999

or 2000, he had, in the course of assisting a friend, happened

upon McGowan’s house. According to Seevers’ story, McGowan recognized him from his time in Chino, and invited him

into his home to snort methamphetamine, an invitation

Seevers accepted. Seevers claimed that later, on two separate

occasions, he gave McGowan speed, some of which he was

to deliver to inmates in prison. Finally, Seevers contended

that, after he was arrested and returned to prison, McGowan

came to his cell and gave him a quarter gram of speed. To

confirm his story, Seevers accurately described to the agents

the location of McGowan’s house.3

The second document was a transcript of Seevers’ testimony in the trial of Shayne Ziska, a Chino prison guard who

was charged with misconduct involving smuggling drugs into

the prison. Seevers, a prosecution witness, was asked on

cross-examination whether he had also reported that McGowan engaged in similar misdeeds. Seevers confirmed that he

had, saying, “I’d give him drugs, and he would take them

back in the prison.”

3McGowan claimed that the reason Seevers knew the location of his

house was that, when McGowan purchased it, he found Seevers and several companions squatting there. He contended that he called the police to

aid in evicting the squatters. 

952 UNITED STATES v. MCGOWAN
There is no further evidence in the record or inference that

might be drawn in support of Seevers’ extremely serious

charges, and no explanation as to why McGowan would have

engaged in such felonious conduct with Seevers. Most important, the sentencing judge had no opportunity to observe

Seevers in order to evaluate his credibility, and no one representing McGowan’s interests ever had an opportunity to

cross-examine Seevers in order to test the veracity of his

accusations. 

[6] We considered a similar challenge to the reliability of

evidence at sentencing in United States v. Hanna, 49 F.3d 572

(9th Cir. 1995). We agree with McGowan that Hanna compels us to conclude that Seevers’ allegations were insufficiently reliable to be considered at sentencing. First, Seevers’

allegations, like those of Hanna’s accuser, were not subjected

to many of the procedural mechanisms traditionally used to

test witness testimony. The fact that Seevers testified fleetingly in court, under oath, in another proceeding — presumably the primary basis for the district judge’s determination

that his statements were reliable — does not in and of itself

justify a finding of reliability. The allegations in Hanna were

likewise made under oath, but we nevertheless found them

unworthy of credence. See id. at 577. In Hanna, moreover, the

district judge witnessed the accuser’s testimony, and had the

opportunity to evaluate his demeanor and credibility. Id. Here,

the district judge had before him only the bare record of an

already-completed trial, in which Seevers’ mention of McGowan played an extremely minor part. Furthermore, the defendant in Hanna had an opportunity, albeit limited, to crossexamine his accuser and probe the veracity of his statements.

Id. McGowan was afforded no such opportunity: in fact,

Seevers’ statements were made in a trial at which no party

had any incentive to question his claims regarding McGowan.

Second, there is little reason, other than the fact that he was

under oath, to believe Seevers’ claims. He had “everything to

gain and nothing to lose by implicating” McGowan. Id. at

UNITED STATES v. MCGOWAN 953
578. As a jailhouse informant, he presumably provided information to the FBI in the hope of being granted some sort of

leniency, and could be expected to confirm the truth of this

information when he testified at trial. Cf. Gonzalez v. Wong,

No. 08-99025, 2011 WL 6061514, at *33-*37 (9th Cir. Dec.

7, 2011) (W. Fletcher, J., concurring) (recounting a 1989-90

Los Angeles County Grand Jury investigation that revealed

the disturbing ease and frequency with which jailhouse informants provided false testimony). Seevers’ claims regarding

McGowan were, moreover, completely uncorroborated: that

he knew the location of McGowan’s home says nothing about

whether his assertions that McGowan smoked methamphetamine with him and smuggled drugs into prison were true,

especially given the conflicting explanations of how Seevers

learned of the address. 

[7] In sum, Seevers’ allegations were made under oath but

absent any other procedural mechanism that would ensure that

a witness with the incentive to lie was telling the truth. They

were “not only inconsistent with [McGowan’s] denials, but

were unsupported by . . . any other evidence.” Hanna, 49 F.3d

at 578. They therefore lacked the requisite “minimal indicium

of reliability” to serve as a basis for McGowan’s sentence. 

2. “Demonstrably made the basis for the sentence” 

[8] In determining whether a defendant has shown that

unreliable information was “demonstrably made the basis for

[his] sentence,” we “read the record and decide whether reliance on [the] information . . . probably did occur.” United

States v. Corral, 172 F.3d 714, 716 (9th Cir. 1998). Seevers’

allegations were plainly a factor in the district court’s sentencing decision. At the outset of the hearing, the district judge

said, “As the defendant has properly and correctly gleaned,

the Court was concerned about the transcript that the government provided in the matter of the United States v. Shane

Ziska.” He further stated, after describing the nature of the

assaults for which McGowan was convicted, that the

954 UNITED STATES v. MCGOWAN
“[b]igger problem is the problem raised by Mr. Seevers. That

is unforgivable.” Most important, in the course of explaining

why he had chosen to impose the sentence he did, the district

judge explicitly found that Seevers’ claims were reliable.

Under Federal Rule of Criminal Procedure 32, a sentencing

court “must — for any . . . controverted matter — rule on the

dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Fed. R.

Crim. P. 32(i)(3)(B); see also United States v. Carter, 219

F.3d 863, 867 (9th Cir. 2000) (If a sentencing court “chooses

not to rely upon a disputed factual statement . . . it must

clearly state that the disputed fact was not taken into

account.”). The district judge neither stated that a ruling was

unnecessary nor that the disputed fact was not taken into

account. That he instead complied with his obligation under

Rule 32 by making a ruling that Seevers’ claims were reliable

leaves little room to doubt that Seevers’ unsupported claims

affected the sentence imposed.4

3. Reassignment

McGowan requests that we remand to a different judge for

re-sentencing. The sentencing judge’s statements at the bail

hearing strongly suggest that he would reimpose a 51-month

sentence were this case remanded to him. Because he would

likely have “substantial difficulty in putting out of his . . .

4The government asserts that the sentencing judge’s later statements at

a hearing for bail pending appeal demonstrate that Seevers’ allegations

had no such effect. At the hearing, the judge said that “[i]t would have

been the same sentence” without the Seevers allegations, and that

“Seevers doesn’t enter into it.” These comments are, however, difficult to

reconcile with his earlier statements at the sentencing hearing and the

requirements of Rule 32. In addition, the district judge stated at the bail

hearing that Seevers’ allegations were a factor in his decision to reject the

probation office’s recommendation that McGowan receive a sentence of

probation. That alone is sufficient for the allegations to have been made

the basis for the sentence imposed. 

UNITED STATES v. MCGOWAN 955
mind previously-expressed views,” because his inability to do

so could undermine the appearance of justice in these proceedings, and because re-sentencing before a different judge

would involve minimal duplication of effort, reassignment to

a new judge is appropriate. United States v. Arnett, 628 F.2d

1162, 1165 (9th Cir. 1979).

V.

[9] We hold that the district court did not err in failing to

make a conditional new trial ruling at the time it granted

McGowan’s motion for acquittal. We also hold that we cannot, on this appeal, determine whether McGowan’s counsel

was constitutionally deficient in failing to request such a ruling. Accordingly, we affirm McGowan’s conviction, but without prejudice to his filing a claim for ineffective assistance of

counsel in a § 2255 proceeding. We also conclude that McGowan’s right to due process was violated when the district court

relied on unreliable, unsubstantiated allegations in imposing

his sentence. We therefore vacate McGowan’s sentence and

remand for further proceedings before a district judge who

has not previously presided over this case.5

AFFIRMED in part, VACATED in part and

REMANDED.

5Upon remand, in addition to filing a § 2255 petition regarding ineffective assistance of counsel before the new judge to be assigned, McGowan

may make whatever further filing he deems appropriate, including a

motion for bail. We deny his pending oral bail motion without prejudice.

956 UNITED STATES v. MCGOWAN