United States v. James W. Alverson

concurring and dissenting.

I concur in the fine opinion by Judge Fletcher in all respects except for the last portion which mandates, when this case is returned to the district court, that a new judge be assigned for the resentencing. I cannot join in this directive for two main reasons. First, I consider it at variance with the cases in this Circuit. Second, even aside from the decided cases, it would appear inappropriate, in the absence of a compelling reason — and I do not believe that the record here contains a compelling reason — for this matter to be assigned by an appellate court to a new trial judge.

As the majority states, the Ninth Circuit rule providing for remand to a new judge is reserved for “unusual circumstances,” United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1980). According to United States v. Larios, 640 F.2d 938, 943 (9th Cir. 1981), three criteria must be analyzed and then balanced in making a determination whether “unusual circumstances” are present. I realize that, by invoking language relating to the second of these criteria — i.e., “the appearance of justice” — the majority purports to be following United States v. Wolfson, 634 F.2d 1217, 1222…

666 F.2d 341 UNITED STATES of America, Plaintiff-Appellee, v. James W. ALVERSON, Defendant-Appellant. No. 80-1864. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1981. Decided Jan. 4, 1982. Kenneth C. Cory, Gang, Berkley & Cory, Las Vegas, Nev., for defendant-appellant. Brian L. Sullivan, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before ADAMS, * SNEED and FLETCHER, Circuit Judges. FLETCHER, Circuit Judge: 1 Defendant Alverson appeals both his conviction on four counts of possession of unregistered machine guns in violation of 26 U.S.C. § 5861 (d) (1976) and his sentence. Defendant contends that the evidence was insufficient to sustain his conviction. He also raises several challenges to his sentence. We note jurisdiction under 28 U.S.C. § 1291 (1976). We affirm his conviction but vacate his sentence and remand the case for resentencing before a different judge. 2 * FACTS 3 Alverson was indicted on July 9, 1980, and tried on October 7-9, 1980. Testimony revealed that on June 29, 1980, James Alverson, accompanied by Nancy Alverson, entered the…

Defendant Alverson appeals both his conviction on four counts of possession of unregistered machine guns in violation of 26 U.S.C. § 5861 (d) (1976) and his sentence. Defendant contends that the evidence was insufficient to sustain his conviction. He also raises several challenges to his sentence. We note jurisdiction under 28 U.S.C. § 1291 (1976). We affirm his conviction but vacate his sentence and remand the case for resentencing before a different judge.

I

FACTS

Alverson was indicted on July 9, 1980, and tried on October 7-9, 1980. Testimony revealed that on June 29, 1980, James Alverson, accompanied by Nancy Alverson, entered the Accuracy Gun Store in Las Vegas. He requested to leave a Thompson .45 caliber machine gun for sale on consignment. Prior to leaving the store, defendant dismantled the machine gun and replaced one part with another. The part was identified as a “disconnect,” which prevents a gun from firing more than one shot per function of the trigger. Nancy Alverson signed for the Thompson left on consignment at the store. Alverson took a store employee to his automobile to show him three other weapons that he had left in his ear.

After the defendant left the…