17-2553-cr
United States v. Langston
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 26th day of April, two thousand eighteen.

Present:
               PETER W. HALL,
               CHRISTOPHER F. DRONEY
                    Circuit Judges,
               TIMOTHY C. STANCEU,
                    Chief Judge, U.S. Court of Int’l Trade.*


United States of America,

               Appellee,

v.                                                                               17-2553-cr

Nathaniel C. Langston,

              Defendant-Appellant.


For Appellee:                         Douglas M. Pravda, Penelope J. Brady, Assistant
                                      United States Attorneys, for Richard P. Donoghue,
                                      United States Attorney, Eastern District of New
                                      York, Brooklyn, NY.



       * Timothy C. Stanceu, Chief Judge of the United States Court of International Trade, sitting
by designation.
For Defendant-Appellant:        Robert M. Radick, Jane E. Bobet, Morvillo
                                Abramowitz Grand Iason & Anello P.C., New York,
                                NY.


       Appeal from a decision and judgment entered August 8, 2017, in the Eastern

District of New York (Kuntz, J.).

       UPON        DUE    CONSIDERATION,        IT   IS    HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment is VACATED and the case is

REMANDED for a new hearing on the charged violations of supervised release. In

addition, for the reasons stated below, on remand the case will be assigned to a

different judge.

       Nathaniel Langston appeals from the judgment and order of the district court

finding that he committed four violations of his supervised release and imposing a

sentence based on those violations. We assume the parties’ familiarity with the

underlying facts, the procedural history, the arguments presented on appeal, and

the district court’s rulings.

       To quote from the Government’s brief: “On the facts of this case, the

government agrees that the judgment should be vacated and the case remanded for

a new hearing at which Langston can receive the effective assistance of counsel.”

Appellee’s Brief at 10. This is in part the same relief that Langston is seeking, and

we agree. The district court’s notice to the parties regarding the August 8, 2017,

hearing did not adequately inform Langston that he (and his counsel) needed to be

prepared to present his defense at the hearing. Accordingly, the judgment will be




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vacated, and the case remanded to the district court for a new hearing on those

alleged violations.

      With respect to Langston’s argument that this Court should order his case

reassigned to a different judge, although the Government asserts that is

unnecessary and unwarranted, we think it advisable to do so here. In considering

whether to order reassignment, we look to:

      (1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her mind
      previously-expressed views or findings determined to be erroneous[,]
      . . . (2) whether reassignment is advisable to preserve the appearance
      of justice, and (3) whether reassignment would entail waste and
      duplication out of proportion to any gain in preserving the appearance
      of fairness.

United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008) (per curiam) (alterations in

original) (citation omitted). Regarding the first factor, the government, in opposing

reassignment, argues that there is an insufficient basis to conclude that the district

judge could not be fair upon remand. We do not disagree with the government on

this point. However, the record on appeal does not require us to conclude that the

district judge could not be impartial in conducting the further proceedings we are

ordering. United States v. Johnson, 850 F.3d 515, 525 (2d Cir. 2017) (reassigning

the case where only factors two and three weighed in favor of reassignment).

Nevertheless, we take the unusual step of directing reassignment to a different

judge for the reason identified in the second factor, which is the institutional

interest in ensuring that there will be no basis upon which the impartiality of those

proceedings could be questioned. Here, the district judge expressed serious concern

that Langston was committing a fraud on the district court, suggested that counsel
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assisted in that effort, and denied counsel any CJA fees.     Further, as we have

already detailed, the district court provided inadequate notice regarding Langston’s

need to present a defense and then proceeded with that hearing over the objections

of both Langston and his counsel. In light of these actions, we conclude that the

“appearance of justice would best be preserved by reassignment.” United States v.

Padilla, 186 F.3d 136, 142–43 (2d Cir. 1999) (reassigning the case based on the

district judge’s remarks to counsel and the defendant). Regarding the third factor,

we view any duplication required by having a different judge conduct the hearing on

revocation of supervised release and reach a new decision to be justified in the

interest of preserving the appearance of justice, and we do not deem that

duplication so extensive as to outweigh that interest.

      The judgment of the district court is VACATED, and the case is

REMANDED for a new hearing on the charged violations of supervised release to

be held before a different judge.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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