Robert McGowan, 42, was indicted on two counts of violating 18 U.S.C. § 242 for assaulting two prisoners at the California Institution for Men at Chino, thereby depriving them of their constitutional right to be free of cruel and unusual punishment. After being convicted at a jury trial, McGowan moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c), which was granted. [See: PLN, June 2008, p.38].
The government appealed and the Ninth Circuit reversed, reinstating McGowan’s conviction and holding that the evidence was sufficient to allow a jury to conclude that he had “used force against two inmates for the sole purpose of causing them harm.” The case was remanded for resentencing before a different judge.
On resentencing, to counter the probation office’s characterization of McGowan as a “productive and law-abiding member of his community” who deserved probation and home detention, the government introduced evidence that he had used methamphetamine and smuggled drugs to prisoners in Chino. The evidence consisted of two documents recounting claims made by Ricky Seevers, a jailhouse informant who served time at Chino when McGowan worked at the prison. The judge found the evidence credible and sentenced McGowan to 51 months.
On appeal, the Ninth Circuit held the district court had abused its discretion in finding that Seevers’ claims were reliable. The appellate court noted that the sentencing judge had had no opportunity to personally observe Seevers to assess his credibility, and that no one representing McGowan’s interests had had an opportunity to cross-examine Seevers. As a jailhouse informant, the Court of Appeals observed, Seevers “presumably provided information to the FBI in the hope of being granted some sort of leniency”; moreover, he had “everything to gain and nothing to lose” by implicating McGowan. Thus, the Ninth Circuit vacated the 51-month prison sentence. See: United States v. McGowan, 668 F.3d 601 (9th Cir. 2012).
Following remand, McGowan filed a motion for a new trial, which was denied. He was resentenced on April 16, 2012 to 41 months in federal prison and three years of supervised release, with fines waived. He has since appealed his new sentence and was released on bail pending the outcome of his appeal. See: United States v. McGowan, U.S.D.C. (C.D. Cal.), Case No. 2:07-cr-00113-MMM.
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Related legal case
United States v. McGowan
|Cite||668 F.3d 601 (9th Cir. 2012)|
|Level||Court of Appeals|