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 (9th Cir. 1981). Nonetheless, largely because Larios was decided after Wolfson, the elaborate analysis employed in Larios would appear to be more appropriate in the present case than the approach employed in Wolfson.
My concern centers in large part on the first of the three criteria set forth in Larios, namely, “whether the original judge could reasonably be expected to put out of his mind previously expressed views or findings that were subsequently found to be erroneous,” Larios at 943. In this case, the fact of Alverson’s involvement in a homicide matter was not, under the cases, improperly submitted to the judge by way of a presentencing report. I agree that it was improper for the agent to discuss this matter ex parte with the trial judge. I also agree that, because we do not know whether the trial judge relied on information provided by the agent, there should be a resentencing. However, there is absolutely no indication that anything in fact was brought to the attention of the trial judge by the agent that the judge did not already know, and which would in some way prejudice him and prevent his imposing a sentence appropriately. Certainly, there is nothing on this record to indicate that the trial judge learned something by the ex parte communication that he should not have known. Moreover, even had he gained such knowledge, there is nothing on this record to indicate he was in fact prejudiced or might be prejudiced by such knowledge. In this connection, it is instructive to consider United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), where the Supreme Court remanded for reconsidera*351tion of a sentence when the district judge explicitly took into account two of the defendant’s prior convictions, which were later determined to be constitutionally invalid. The Supreme Court, nonetheless, remanded for resentencing by the same judge, despite the observation of the dissent that nothing would be served by returning the matter to the original judge. 404 U.S. at 452, 92 S.Ct. at 594 (Blackmun, J., dissenting). In Tucker it was clear that the trial judge did have knowledge of improper prior convictions, yet the overwhelming majority of the Supreme Court did not consider this fact sufficient to require a new sentencing judge.
The third factor enumerated in Larios also needs to be considered. I am not convinced that “reassignment would [not] entail waste of duplication of effort out of proportion to the gain realized in preserving the appearance of fairness,” Larios at 943. By transferring a case such as this to a new judge, we require the new judge to become completely familiar with the entire record— no small burden in a proceeding such as the present one. Moreover, if the practice employed by the majority were applied uniformly, and no reason is suggested why it should not be, then in districts where only one judge sits, it would be necessary to bring in a judge from another district, at no small cost and no little delay.
Even in the absence of Ninth Circuit cases which now provide the guidelines for re-assigning remanded cases, I would suggest the practice of assigning new judges on remand should be utilized in a most cautious manner. Here the trial judge conducted the three day trial which resulted in the conviction. He heard the evidence, and saw and heard 12 witnesses. To eliminate this whole reservoir of knowledge solely on the basis of an observation that the appearance of justice might be served thereby, would seem to exalt the views of an appellate court over time-tested practice and the practicalities of the situation. At most, it would seem adequate to direct the trial judge to consider whether the resentencing should be assigned to a new judge.
Accordingly, I respectfully dissent from the directive that resentencing in this matter be performed by a different judge.