Saturday, February 04, 2012

Case o' The Week: Sentencing Big Mac Attack - McGowan, Due Process, and Reliability of Evidence at Sentencing

Due process at sentencing -- like other beasts in cryptozoology -- is rumored to roam the Ninth Circuit, but is rarely seen and is almost never documented. 
     Until McGowan. United States v. McGowan, 2012 WL 233257 (9th Cir. Jan. 26, 2012), decision available here.

Players: Win by SF appellate gurus Dennis Riordan and Donald Horgan. Decision by Judge Reinhardt.

Facts: Robert "Big Mac" McGowan (above left), a prison guard, was charged with abusing prisoners and with conspiring to obstruct justice. Id. at *1. After the jury found him guilty, he moved for judgment of acquittal under Rule 29(c) – but did not move for a new trial under Rule 33. Id. The court granted the Rule 29 motion; the Ninth reversed after the government appealed. Id. On remand, McGowan filed a motion for new trial which (Rule 33), which was dismissed as untimely. Id.

At sentencing, the district court relied on allegations from a prison inmate and imposed a guideline sentence of 51 months. Id. at *2. The inmate, Seevers, alleged that McGowan had snorted meth with him and had smuggled meth into prison. Id. at *5. Some of those allegations were made under oath, in a different prosecution. Id. at *5.

Issue(s): “McGowan . . .  contends that he was deprived of due process when the district judge relied on a prisoner inmate’s unreliable allegations at sentencing.” Id. at *1.

Held:Here, the district judge abused his discretion in finding that Seevers’ claims were reliable.” Id. at *5. “Seever’s 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. They therefore lacked the requisite minimal indicium of reliability to serve as a basis for McGowan’s sentence.” Id. at *6 (internal quotations and citations omitted).

Of Note: McGowan is startlingly good. It rejects the sentencing testimony of a government witness, who made allegations under oath. It speculates that the snitch received benefits for the testimony – but there’s no evidence of that in the case. Id. at *6. The government's evidence in McGowan wasn’t second or third-hand hearsay repeated to some DEA agent; some of the allegations were direct observations made by the witness on the stand during the trial of another guard. Id. at *5. And the snitch’s story was substantiated by his ability to describe McGowan’s personal residence, where the pair had allegedly snorted meth together. Id. at *5.  

  Contrast McGowan to the lousy evidence from drug snitches routinely offered and relied upon at federal sentencing: double-hearsay, not under oath, well-documented benefits and incentives to lie, with no corroborating facts. From the trenches, the government’s evidence rejected in McGowan looks far better than the unreliable dross often tolerated at sentencing hearings in district court – making McGowan a potent defense tool for sentencing litigation.

How to Use: McGowan gives an important trial-practice tip. “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 did not err in failing to conditionally grant McGowan a new trial, as McGowan did not make a motion requesting one.” Id. at *3.

 Put differently, when the guilty verdict comes in make both a Rule 29 motion for judgment of acquittal, and a Rule 33 motion for new trial. If you win the former, you’ll want to still have the latter in your pocket when the Ninth gets the government’s appeal of your Rule 29 victory. Note, however, that there may be times when a defendant does not want to simultaneously make a Rule 33 motion. Judge Reinhardt lays those strategic considerations out for us in depth. Id. at *4-*5 (describing a better-prepared prosecutor on the second prosecution, a fear that a judge will compromise away from Rule 29 towards a Rule 33 if given the chance, or worries about shifting to another judge). Those considerations are worth a close read, before the trial gets underway.
For Further Reading: Thoughtful district judges have wondered why there aren’t more evidentiary hearings at sentencing, given these known reliability issues. The answer is powerful guideline disincentives for the defendant. If a defendant is found to have falsely contested a sentencing fact, he or she could lose three offense levels of acceptance and risk an additional two levels for obstruction.  See USSG § 3E1.1 (acceptance); USSG 3C1.1 (obstruction), comment. n.4(H) ("providing materially false information to a probation officer in respect to a presentence or other investigation for the court").

  This makes contesting facts in the PSR a high-risk proposition for the defense. Is fighting a level or two specific offense characteristic worth risking losing up to five offense levels, when it will be the defendant's word against a cop's? When the fact-finder is also the sentencing judge? When the government's burden of proof is (usually) only by a preponderance of the evidence?

   By contrast, if a snitch or “victim” lies at a sentencing hearing, the government just shrugs and foregoes its sentencing enhancement. There is no disincentive for the government: no corresponding reduction in the defendant's base guideline range if the government's witness is found to have falsely contested a sentencing fact.

   For a thoughtful explanation of this unfair sentencing structure -- and the institutional costs of this imbalance -- see Margareth Etienne, Parity, Disparity, and Adversariality: First Principles of Sentencing, 58 Stan. L. Rev. 309, 319, available here.  

Image of Robert McGowan from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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