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Gollehon v. Mahoney, No. 09-99011 (11-22-10) (O'Scannlain with Farris and Wardlaw). The petitioner was convicted and sentenced to death in a Montana prison murder. He was convicted of "deliberate homicide by accountability," as a way of the jury convicting him and a co-defendant without having to find who struck the victim with baseball bats. The issue was whether the statute lacked the fair notice that essentially aiding and abetting could subject the defendant to the death penalty. The 9th found that the Montana statute did not state a separate offense, with the catch-all penalty of 10 years, but rather was a form of accountability, referencing the substantive offense of first-degree murder. The 9th used canons of statutory construction and the trend toward model penal codes to so hold.

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