U.S. v. McGowan, No. 10-50284 (1-26-12) (Reinhardt with Kozinski and W. Fletcher).

The 9th previously had reversed a judgment of acquittal following a jury's verdict of guilty. The case involved a prison guard's assault on two inmates. On this appeal, defendant argues that the court erred in failing to conditionally rule that he was entitled to a new trial. This was under Fed. R. Crim. P. 29. The 9th held that the court was not required to make such a ruling, and indeed, had no such authority to make such a ruling absent a defendant's motion. The 9th so held because the defense may want a judgement but not a new trial. There are strategic and actual reasons. Because there was no motion here, the court did not err in not ruling. The 9th also declined to rule on the IAC claim for failing to so move, leaving that to a post-conviction 2255 proceeding. Lastly, the 9th did vacate the 51 month sentence, having been imposed using suspect unreliable statements from a former inmate that was untested. On remand, the case is reassigned.