What is the test for remanding a defendant to a different district judge?

MultiRegion, United States of America

The following excerpt is from U.S. v. Ferguson, 624 F.2d 81 (9th Cir. 1980):

We further hold that the case be remanded to a different district judge. We recognize that, absent proof of personal bias of which there is none in this case, remand to a new judge is reserved for "unusual circumstances." United States v. Arnett, No. 79-1243, --- F.2d ---- (9th Cir. Nov. 26, 1979). Such circumstances are present in this case. In United States v. Arnett, we set forth a three-part test for determining when remand to a new judge is proper. Id. at ----. The first factor is whether the original judge would reasonably be expected to put out of his mind previously expressed views or findings that were determined to be erroneous. Id. Because the district judge created the error in this case and because he was so adamant in his refusal to take account of mitigating circumstances, we cannot reasonably conclude that he would now be able to put his previous errors out of his mind in resentencing this defendant. Or he may tend to overreach in favor of the defendant in an effort to correct his past mistakes.

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