15-3942
In re: Miller

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 ELECTRON IC 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
5 th day of October, two thousand seventeen.

Present: JON O. NEWMAN, GUIDO CALABRESI, ROSEMARY S. POOLER, Circuit Judges

.

_____________________________________________________

IN RE: MILLER

ANDREW RYAN MILLER,

Appellant

,

v. 15-3942

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF NEW YORK,

Appellee

.

_____________________________________________________
Appearing for Appellant: JEFFREY L. CICCONE , Assistant Federal Public Defender, Federal Public Defender’s Office, Western District of New York, Rochester, NY

JAY S. OVSIOVITCH, Of Counsel, Rochester, NY2 Appearing for Appellee: JOSEPH J. KARAS ZEWSKI, Assistant United States Attorney for James P. Kennedy, Jr., Acting United States Attorney for the
Western District of New York, Buffalo, NY.

Appeal from the United States Di strict Court for the Western Di strict of New York (Wolford, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is VACATED and
REMANDED

.

Appellant Andrew Ryan Miller appeals th e December 8, 2015 order of the United States District Court for the Western District of New York (Wolford, J. ) sentencing him to 72 hours in prison for his repeated failure to appear for jury service pursuant to 28 U.S.C. § 1866(g). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

Miller makes numerous claims in support of his complaints that his due process rights were violated during his criminal contempt h earing pursuant to Secti on 1866(g) on September 2,
2015. We do not need to reach all of them for th e government concedes that due process was in fact violated, specifically stati ng “the court impermissibly shifte d the burden of proof to Miller, compelled him to be a witness against himself, and negatively impacted his right to counsel. We agree that the district court so erred.

“As a general rule, cases remanded to a Dist rict Court for further proceedings are sent back without any directions or suggestions as to the judge before whom they are to be conducted,” though we acknowledge that “in a few instances there may be unusual circumstances where both for the judge’s sake an d the appearance of justice, an order of reassignment is appropriate.” Mackler Prod., Inc. v. Cohen , 225 F.3d 136, 146-47 (2d Cir. 2000) (internal citations and punctuation omitted). We do not find reassignment to be necessary in this case at this stage. Miller has failed to argue that the district court judge will have “substantial difficulty . . . putting out of . . . her mind . . . evid ence that must be rejected,” such as Miller’s statements at the initial pr oceeding, and we do not believe such an argument would be convincing. United States v. Robin , 553 F.2d 8, 10 (2d Cir. 1977). The proceeding that forms the
basis of the remand was brief and occurred over two years ago. Given the pace and amount of work at the district court, we find it more likely that the district court will have a difficult time remembering the proceeding than it will have putting the proceed ing out of mind. Further, we have confidence that, were the di strict court judge to become a witness in the proceedings, the district court judge would recuse herself and have the case re assigned to a colleague instead.

Accordingly, the judgment of the district court hereby is VACATED and the case is REMANDED for further proceedings c onsistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk