United States v. Robert McGowan

Robert McGowan (“McGowan”), a former state prison guard, appeals his convic tion 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 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…