US v. Steele, No. 12-30005 (10-24-13) (Christen with Pregerson and Murguia).
The 9th establishes a new test if a defendant asks the district court to rule on IAC pre-judgment. The 9th states that when an IAC claim is first raised in the district court pre-judgment, the court may, and at times should, consider the claim at that point in the proceeding. The consideration is at the discretion of the district court. The test is adopted from the Second Circuit. In the case here, a criminal defense lawyer tried to have his wife and mother-in-law killed (murder for hire) and then obstructed justice. The defense was that the defendant was framed. At trial, the defense counsel failed to subpoena his own tape expert and the expert could not appear. He would have testified that there seemed to be a large number of gaps on a recording of the defendant and his wife (who still covered for defendant!) where the defendant asked her to say she could not identify him. Where was the expert? In Bora Bora on vacation. The trial court said it was the defense's own fault. On appeal, using the new test, the 9th held no error in denying the motion for new trial on IAC grounds because the record was undeveloped as to prejudice, or impact, or possible strategy. A district court could consider such a claim if the record was complete, or was plainly apparent on the facts before the court.